Karnataka High Court
Sri Samay Chetan vs Union Of India on 2 September, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 5531 of 2024
C/W WP No. 1529 of 2024
WP No. 2401 of 2024
WP No.8531 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 5531/ 2024 (EDN-RES)
C/W
WRIT PETITION NOS. 1529/2024, 2401/2024, 8531/2024(EDN-RES)
IN W.P.NO.5531/2024:
BETWEEN:
KUM. DRUTHI BOLLINENI,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN,
DAUGHTER OF BHAVANI PRASAD BOLLINENI,
RESIDING AT 92, LAKESHORE HOMES,
KASAANAHALLI, BANGALORE - 35.
...PETITIONER
(BY SRI. YATHISH S., ADVOCATE AND
SRI. VARUN M R., ADVOCATE)
AND:
1. UNION OF INDIA,
THROUGH MINISTRY OF HOME AFFAIRS,
Digitally signed GOVERNMENT OF INDIA,
by
LEELAVATHI S REPRESENTED THROUGH ITS SECRETORY,
R NORTH BLOCK, NEW DELHI - 110 001.
Location: HIGH
COURT OF 2. STATE OF KARNATAKA,
KARNATAKA
THROUGH PRINCIPAL SECRETARY
TO THE GOVERNMENT,
HIGHER EDUCATION DEPARTMENT,
VIDHANA SOUDHA,BANGALORE - 560 001.
3. KARNATAKA EXAMINATIONS AUTHORITY
REPRESENTED BY ITS EXECUTIVE DIRECTOR,
SAMPIGE ROAD, 18TH CROSS,
MALLESHWARAM, BENGALURU - 560 012.
...RESPONDENTS
(BY SMT. SAVITHRAMMA, AGA FOR R2;
SRI. RAJASHEKAR S., ADVOCATE FOR R1)
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WP No. 5531 of 2024
C/W WP No. 1529 of 2024
WP No. 2401 of 2024
WP No.8531 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO A. A WRIT OF
DECLARATION ISSUES TO THE EFFECT THAT, THE IMPUGNED
RULE 5 OF THE KARNATAKA SELECTION OF CANDIDATES FOR
ADMISSION TO GOVERNMENT SEATS IN PROFESSIONAL
EDUCATIONAL INSTITUTION RULES, 2006, TO THE EXTENT IT
PRESCRIBES INDIAN CITIZENSHIP, IS NOT ENFORCEABLE
AGAINST THE OVERSEAS CITIZENS OF INDIA CARDHOLDERS AND
ETC.,
IN W.P.NO.1529/2024:
BETWEEN:
1. SIDDHARTH RAM,
AGED ABOUT 18 YEARS OLD,
C/O RAM NARASIMHAN,
E1007, JACARANDA, BRIGADE MILLENNIUM,
JP NAGAR 7TH PHASE, VTC. JP NAGAR,
PO. JP NAGAR,
DISTRICT: BENGALURU,
STATE: KARNATAKA - 560 078.
2. ANUSHA AGARWAL,
AGED ABOUT 17 YEARS OLD,
D/O MAHENDRA AGARWAL,
BASAV NAGAR, TALIKOTI, TALIKOTI (RURAL)
BIJAPURA, TALIKOTI,
KARNATAKA - 586 214.
REPRESENTED BY HER NATURAL GUARDIAN
MAHENDRA AGARWAL
3. ARABHI BHAT
AGED ABOUT 18 YEARS OLD,
D/O VISHWESH Y BHAT,
#201, VARANASI, 2ND MAIN,
BRINDAVAN EXTENTION,
ARAKERE MICO LAYOUT,
BANNERGHATTA ROAD,
BANGALORE SOUTH,
HULIMAVU, BANGALORE SOUTH BANGALORE
KARNATAKA - 560 076.
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4. ANIRUDH THIAGARAJAN TRICHY
AGED ABOUT 17 YEARS,
S/O THIAGARAJAN KRISHNAKUMAR TRICHY;
#910, G F 1, CHAITRA SRI PARADISE,
5TH CROSS, VIJAYA BANK LAYOUT,
B G ROAD, BANGALORE SOUTH,
BANGALORE, KARNATAKA - 560 076.
REPRESENTED BY HIS NATURAL GUARDIAN:
MR. THIAGARAJAN KRISHNAKUMAR TRICHY
5. VYSHALI AYTHA
AGED ABOUT 17 YEARS OLD,
C/O RAJ NARAYAN AYTHA,
NO.27, 17TH CROSS, 15TH MAIN,
JP NAGAR, 5TH PHASE,
VTC: BANGALORE SOUTH,
PO: JP NAGAR,
SUB DISTRICT: BANGALORE SOUTH,
DISTRICT: BENGALURU
STATE: KARNATAKA - 560 078.
REPRESENTED BY HER NATURAL GUARDIAN:
MR. RAJ NARAYAN AYTHA
6. VISHESH KAILASH BHOOPALAM
AGED ABOUT 17 YEARS OLD,
C/O KAILASH PRASAD BHOOPALAM,
NO.4022, PRESTIGE SOUTH RIDGE,
125, HOSAKEREHALLI CROSS,
VTC BANASHANKARI 3RD STAGE,
PO BANASHANKARI III STAGE,
SUB DISTRICT: BANGALORE SOUTH,
DISTRICT: BENGALURU
STATE: KARNATAKA - 560 085.
REPRESENTED BY HIS NATURAL GUARDIAN
MR. KAILASH PRASAD BHOOPALAM
7. TRISHA ROHIT POBBATHI,
AGED ABOUT 17 YEARS,
C/O ROHIT POBBATHI ASHOK,
NO.428, SVASTI, 5TH CROSS,
JAYANAGAR, 7TH BLOCK WEST,
VTC: BANASHANKARI II STAGE,
PO: BANASHANKARI II STAGE,
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SUB DISTRICT: BANGALORE SOUTH,
DISTRICT: BENGALURU,
STATE: KARNATAKA - 560 070.
REPRESENTED BY HER NATURAL GUARDIAN:
MR. ROHIT POBBATHI ASHOK
8. SMARAN NADIG,
AGED ABOUT 17 YEARS OLD,
S/O RAGHU NADIG,
#818, 3RD CROSS, 7TH MAIN ROAD,
NEAR COMMERCIAL TAX OFFICERS
ASSOCIATION BUILDING,
11TH BLOCK, NAGARABHAVI 2ND STAGE,
BANGALORE NORTH, BANGALORE,
KAMATAKA - 560 072.
REPRESENTED BY HIS NATURAL GUARDIAN
MR. RAGHU NADIG
9. SRUJAN NADIG,
AGED ABOUT 17 YEARS OLD,
S/O RAGHU NADIG,
818, 3RD CROSS, 7TH MAIN ROAD,
NEAR COMMERCIAL TAX OFFICERS
ASSOCIATION BUILDING,
11TH BLOCK, NAGARBHAVI 2ND STAGE,
BANGALORE NORTH, BANGALORE,
KAMATAKA - 560 072.
REPRESENTED BY HIS NATURAL GUARDIAN
MR. RAGHU NADIG
10 . SAMEEKSHA MIRJI,
AGED ABOUT 18 YEARS OLD,
D/O JAYATEERTHI MIRJI,
#500, 3RD CROSS, 1ST MAIN,
ROYAL COUNTY LAYOUT,
JP NAGAR 8TH PHASE,
BANGALORE SOUTH GOTTIGERE,
BENGALURU - 560 083.
KARNATAKA.
11 . RITU RANGANATH KASHYAP
AGED ABOUT 17 YEARS OLD,
D/O RANGANATH CHINKURLI SEETHARAMU,
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704 A HILL CREST, HOUSE OF HIRANANDANI,
AKSHAYA NAGAR, HULIMAVU BEGUR ROAD,
VTC: BEGUR, PO: BOMMANAHALLI,
SUB DISTRICT. BANGALORE SOUTH,
DISTRICT: BENGALURU,
STATE: KARNATAKA - 560 068.
REPRESENTED BY HER NATURAL GUARDIAN:
MR. RANGANATH CHINKURLI SEETHARAMU
12 . PRASHASVI PRAKYATH BAGEPALLI,
AGED ABOUT 17 YEARS OLD,
D./O PRAKYATH BAGEPALLI
#12, PAVANA, 4TH MAIN, BHEL 2ND STAGE,
RAJARJESHWARI NAGAR,
BENGALURU, KARNATAKA - 560 098.
REPRESENTED BY HER NATURAL GUARDIAN:
MRS. SHRUTHI P BAGEPALLI
13 . ADITHYA HARISH KASHYAP
AGED ABOUT 17 YEARS OLD,
C/O HARISH K SIDLAGHATTA,
SIRI 68/69, 11THMAIN ROAD, A G S LAYOUT,
VTC: BANGALORE SOUTH,
PO: SUBRAMANYAPURA,
SUB DISTRICT: BANGALORE SOUTH,
DISTRICT: BENGALURU,
STATE: KARNATAKA - 560 061.
REPRESENTED BY HIS NATURAL GUARDIAN:
MR. HARISH K SIDLAGHATTA
14 . ASHINITHA MOHAN,
AGED ABOUT 17 YEARS OLD,
D/O MOHAN RASAPPAN,
1241, 1ST FLOOR, 5TH CROSS D BLOCK,
AECS LAYOUT KUNDALAHALLI,
BANGALORE NORTH,
MARATHAHALLI COLONY,
BENGALURU, BANGALORE NORTH,
KARNATAKA - 560 037.
REPRESENTED BY HER NATURAL GUARDIAN:
MR. MOHAN RASAPPAN
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15 . TIMOTHY KURIAN MATHEW
AGED ABOUT 17 YEARS OLD,
S/O MATHEW JACOB,
FLAT NO. 612, EMASSSY HABITAT,
NO.59, PALACE ROAD,
NEXT TO MOUNT CARMEL COLLEGE,
VASANTH NAGAR,
VTC: BANGALORE NORTH,
PO: BANGALORE GPO
SUB DISTRICT: BANGALORE NORTH,
DISTRICT: BENGALURU
STATE: KARNATAKA - 560 001.
REPRESENTED BY HIS NATURAL GUARDIAN:
MR. MATHEW JACOB
16 . NIDHI DEEPAK MEKARAJ
AGED ABOUT 17 YEARS OLD,
D/O DEEPAK MEKARAJ
H-802, NAGARJUNA GREENRIDGE,
19TH MAIN,27TH CROSS, SECTOR-2,
HSR LAYOUT, BANGALORE SOUTH,
HSR LAYOUT, BANGALORE,
KARNATAKA - 560 102.
REPRESENTED BY HER NATURAL GUARDIAN
MR. DEEPAK MEKARAJ
17 . BHAGYASHREE MAHAJANAM
AGED ABOUT 19 YEARS OLD,
D/O VIJAY MAHAJANAM,.
NO.32, 2ND CROSS, 5TH A MAIN,
NEAR SRINIDHI PUBLIC SCHOOL,
SRINIDHI LAYOUT, KONANAKUNTE
VTC: BANGALORE SOUTH,
PO: DODDAKALLASANDRA,
SUB DISTRICT:BANGALORE SOUTH,
DISTRICT: BANGALORE,
STATE: KARNATAKA - 560 062.
18 . VARSHINI PUTREVU
AGED ABOUT 17 YEARS OLD,
D/O PUTREVU SUBRAMANYAM,
# E.1106, JACRANDA BLOCK,
BRIGADE MILLENNIUM APARTMENTS,
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NEAR RBI LAYOUT, WATER TANK PUTTENAHALLI,
JP NAGAR 7TH PHASE, BANGALORE SOUTH,
J P NAGAR, BANGALORE SOUTH,
BANGALORE, KARNATAKA 560 078,
REP BY HER NATURAL GUARDIAN:
MR. PUTREVU SUBRAMANYAM.
19 . ROHANA RAMESH EDALUR,
AGED ABOUT 17 YEARS OLD,
D/O RAMESH HANUMANTHAIAH,
NO.58, ROYAL HERMITAGE, 4TH CROSS,
GOTTIGERE, BANNERGHATTA ROAD,
BANGALORE 560 083,
REP BY HER NATURAL GUARDIAN:
MR. RAMESH HANUMANTHAIAH
20 . NYMISHA ALEKSHA KODALI
ALIAS NYMISHA A KODALI,
AGED ABOUT 16 YEARS OLD,
D/O RAVIKANTH KODALI,
R/AT NO.28, CHAITANYA LAGROVE,
DREAM MEADOWS LAYOUT KUNDALAHALLI,
BANGALORE NORTH, MARATHAHALLI COLONY,
KARNATAKA 560 037.
REP BY HER NATURAL GUARDIAN,
MRS. SHAILAJA RANGANATH KANDIBILLA
21 . VARUN SAI POTNURU
AGED ABOUT 17 YEARS OLD,
S/O MADHAV SAI POTNURU,
R/AT SF-4, KEMPTON PARK, BROOKFILED,
OPP RYAN INTERNATIONAL SCHOOL,
KUNDALAHALLI,
VTC: BANGALORE NORTH,
PO: MARATHAHALLI COLONY,
SUB DISTRICT: BANGALORE NORTH,
DISTRICT: BENGALURU -560 037,
REP BY HIS NATURAL GUARDIAN:
MR. MADHAV SAI POTNURU
22 . SOWRABYA SRINIVASAN
AGED ABOUT 18 YEARS OLD,
D/O SRIRAMAN SRINIVASAN,
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R/AT NO.443, 9TH MAIN,
NEAR VIJAYA ENCLAVE APARTMENTS,
VIJAYA BANK LAYOUT, BILEKAHALLI,
BANNERGHATTA ROAD, BANGALORE SOUTH,
BANGALORE, KARNATAKA - 560 076.
23 . HARSHITH R
AGED ABOUT 17 YEARS OLD,
S/O RAMESH A P,
R/AT NO.544/1, 15TH MAIN, 2ND C CROSS,
1ST BLOCK, 3RD STAGE,
BASAWESHWARA NAGAR,
BANGALORE NORTH,
BASAVESHWARANAGAR,
BANGALORE, KARNATAKA - 560 079,
REP BY HIS NATURAL GUARDIAN;
MR RAMESH AP
24 . ADARSH JAKARADDI
AGED ABOUT 17 YEARS OLD,
S/O CHETAN ANAND JAKARADDI,
R/AT JAKARADDI NURSING HOME,
VIDYANAGAR, VTC: HUBLI,
PO: HUBLI VIDYANAGAR,
SUB DISTRICT: HUBLI,
DISTRICT: DHARWAD,
STATE: KARNATAKA - 580 021,
REP BY HIS NATURAL GUARDIAN:
MR. CHETAN ANAND JAKARADDI
25 . GAYATRI BALKRISHNA MENON
AGED ABOUT 17 YEARS OLD,
D/O BALKRISHNA BHASKER MENON,
2081, SOBHA DAISY,
GREEN GLEN LAYOUT, BELLANDUR,
BENGALURU, KARNATAKA 560 103,
REP BY HER NATURAL GUARDIAN:
BALKRISHNA BHASKAR MENON
26 . ANUSH MAKAM
AGED ABOUT 17 YEARS OLD,
S/O ADINARAYANA M V,
NO.7, RANGA RAO ROAD,
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OPPOSITE KHADIBHANDRA,
SHANKARAPURA, VTC: BANGALORE SOUTH,
PO: BASAVANAGUDI,
SUB DISTRICT: BANGALORE SOUTH,
DISTRICT: BANGALORE
STATE: KARNATAKA - 560 004,
REP BY HIS NATURAL GUARDIAN:
MRS PM ANANTH LAKSHMI
27 . SAAGARIKA MURTHY KIRAN
AGED ABOUT 17 YEARS OLD,
D/OKIRAN KRISHNAMURTHY,
NO.34/2, JANHAVI MEADOWS,
A BLCOK 604, BEGUR KOPPA ROAD,
CLOSE TO SNN RAJ SERENITY,
YELENAHALLI, BEGUR,
BENGALURU, KARNATAKA 560 068,
REP BY HER NATURAL GUARDIAN,
KIRAN KRISHNAMURTHY.
28 . ANANYA GAUTHAM
AGED ABOUT 17 YEARS OLD,
D/O PRADEEPA ANATHAPADMANABHA,
240, 2ND D CROSS, 2 B MAIN,
BEHIND SITA CIRCLE PETROL PUMP,
GIRINAGAR 1ST PHASE,
VTC: BANGALORE SOUTH,
PO: BYATARAYANAPURA,
DISTRICT: BENGALURU,
STATE: KARNATAKA - 560 085,
REP BY HER NATURAL GUARDIAN:
MRS. PRADEEPA ANANTHAPADAMANABAHA
29 . SHWETA PATTNAIK
AGED ABOUT 17 YEARS OLD,
D/O SUDEEP KUMAR PATTNAIK,
636, ADARSH PALM RETREAT,
DEVARBEESNAHALLI, BELLANDUR,
BENGALURU 560 103,
REP BY HER NATURAL GUARDIAN,
MRS. SWARUPA PATTNAIK.
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30 . NIRAJ S SHALIGRAM
AGED ABOUT 18 YEARS OLD,
S/O SUNIL K SHALIGRAM,
NO.319, 10TH CROSS,
NEAR AGADI NURSING HOME,
WILSON GARDEN,
VTC: BANGALORE SOUTH,
PO: WILSON GARDEN,
SUB DISTRICT: BANGALORE SOUTH,
DISTRICT: BANGALORE,
STATE: KARNATAKA - 560 027.
31 . MAANASI SHARMA
AGED ABOUT 18 YEARS OLD,
D/O NAGARATHNAM RAJ SHARMA.
ORCHID 1003, HM WORLD CITY APARTMENTS,
JP NAGAR 9TH PHASE,
BANGALORE 560 062.
REP BY HER NATURAL GUARDIAN:
MR NAGARATHNAM RAJ SHARMA
32 . SHRAVYA RANGANAHALLY PRAKASH ALIAS
SHRAVYA PRAKASH
AGED ABOUT 17 YEARS OLD,
S/O PRAKASH RANGANAHALLY MUPPANNA,
FLAT J 201, NANDI CITADEL, AKSHAYA VANA,
NOBEL RESIDENCY ROAD,
NEAR SPARSH SUPER MARKET,
CHANDRASHEKARAPURA,
BANGALORE SOUTH, BENGALURU,
KARNATAKA 560 076,
REP BY HER NATURAL GUARDIA:,
MR PRKASH RANGANAHALLY MUPPANNA.
33 . ARYA VANALPAKKAM RAJESH
AGED ABOUT 17 YEARS OLD,
S/O RAJESH BASHYAM,
NO.2321, 20TH CROSS ROAD,
NEAR K R ROAD, BANGALORE,
BENGALURU, KARNATAKA 560 070,
REP BY HIS NATURAL GUARDIAN,
MRS. SARITA RAJESH
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34 . GOKUL NANDAM RAM
AGED ABOUT 17 YEARS OLD,
S/O ASHWIN B RAM,
NO.52, 16TH CROSS, 6TH MAIN,
MALLESHWARAM,
BANGALORE 560 055,
REP BY HIS NATURAL GUARDIAN,
MR ASHWIN B RAM.
35 . VEDANG RAGHAVENDRA CHINHALLI
AGED ABOUT 17 YEARS OLD,
S/O RAGHAVENDRA CHINHALLI
NO.4032, PRESTIGE SOUTH RIDGE,
HOSAKEREHALLI CROSS,
BEHIND NCERT BUILDINGS,
BANASHANKARI 3RD STAGE,
BANGALORE SOUTH 560 085,
REP BY HIS NATURAL GUARDIAN,
MR RAGHAVENDRA CHINHALLI
36 . CHINMAYEE GANGADHAR
AGED ABOUT 17 YEARS,
D/O GANGADHARA CHIKKARANGAIAH,
NO.483, 11TH CROSS, RHCS LAYOUT
ANNAPOORNESHWARINAGARA,
BANGALORE NORTH, PO: VISWANEEDAM,
BANGALORE 560 091,
REP BY NATURAL GUARDIAN,
MR GANGADHARA CHIKKARANGAIAH.
IMPLEADED BY WAY OF ORDER DATED 13.02.2024
37. BHUDAVARTHI SHREYAS,
AGED ABOUT 17 YEARS,
S/O B GURU PRASAD,
RESIDING AT NO.185, AECS LAYOUT, C BLOCK,
SINGASANDRA, BANGALORE SOUTH,
BENGALURU, KARNATAKA - 560 068.
REPRESENTED BY NATRUAL GUARDIAN
MR.B.GURU PRASAD.
38. AVILASH DINESH,
AGED ABOUT 17 YEARS,
S/O DINESH RAMANATHAN,
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RESIDING AT 10063, JACARANDA CORNER,
PRESTIGE SHANTINIKETAN, ITPL MAIN ROAD,
WHITEFIELD, BANGALORE NORTH,
BENGALURU - 560 048.
REPRESENTED BY NATURAL GUARDIAN
MR. DINESH RAMANATHAN,
39. SRIYA SAMPANNA KILARU,
AGED ABOUT 18 YEARS OLD,
D/O SUNIL KILARU,
R/AT PRESTIGE OZONE, VILLA 248,
WHITEFIELD MAIN ROAD, BANGALORE - 560 066.
40. ROYCE B SELVARAJ,
AGED ABOUT 17 YEARS OLD,
S/O SELVARAJ M,
#003, SOHHUM ISIRI, BOREWELL ROAD,
NALLURAHALLI WHITEFIELD,
BANGALORE - 560 066.
REPRESENTED BY HIS NATURAL GUARDIAN
MRS.V NARMADHA VENKATESAN
41. PRATHAM THAKKAR,
AGED ABOUT 17 YEARS OLD,
S/O PANKAJ THAKKAR,
R/AT M-301, BRIGADE GATEWAY,
26/1, DR.RAJKUMAR ROAD, ORION MALL,
MALLESWARAM WEST, BANGALORE - 560 055.
REPRESENTED BY HIS NATURAL GUARDIAN
MR. PANKAJ THAKKAR.
42. SHREYA MALIGE,
AGED ABOUT 17 YEARS OLD,
D/O MANJUNATHA MALIGE,
R/AT VILLA B-13, AJMERA VILLOWS,
NEELADRI ROAD, NEAR WIPRO GATE,
#16, ELECTRONIC CITY, PHASE -1,
BANGALORE SOUTH, BANGALORE - 560 100.
REPRESENTED BY HIS NATURAL GUARDIAN
MR.MANJUNATH MALIGE.
...PETITIONERS
(BY SRI. NAMA JHABAKH, ADVOCATE FOR
SRI. VIVKE HOLLA, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. KARNATAKA EXAMINATION AUTHORITY
REPRESENTED BY ITS EXECUTIVE DIRECTOR
SAMPIGE ROAD, 18TH CROSS,
MALLESHWARAM, BENGALURU - 560 012.
3. THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY
TO GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI - 110 001.
...RESPONDENTS
(BY SMT. SAVITHRAMMA, AGA FOR R3;
SRI. N K RAMESH, ADVOCATE FOR R2;
SRI. A CHANDRACHUD, CGSC FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO i) DECLARE
THAT RULE 5(1) OF THE KARNATAKA SELECTION OF CANDIDATES
FOR ADMISSION TO GOVERNMENT SEATS IN PROFESSIONAL
EDUCATIONAL INSTITUTION RULES, 2006 TO THE EXTENT IT
MANDATES THAT ONLY AN INDIAN CITIZEN IS ELIGIBLE FOR
GOVERNMENT SEATS AS ULTRA VIRES AND UNCONSTITUTIONAL
(PRODUCED AS ANNEXURE-Q) AND ETC.,
IN W.P.NO.2401/2024:
BETWEEN:
1. SRI. SAMAY CHETAN,
AGED ABOUT 18 YEARS,
SON OF CHETAN BANGALORE
RESIDING AT NO.4, 5TH CROSS,
1ST MAIN, PRASHANTHNAGAR,
BANGALORE 560 079.
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2. KUM. PRAJNA VISHWANATH BHAT,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF VISHWANATH BHAT,
RESIDING AT PLOT NO.29,
RADHAKRISHNA NAGAR,
DHARWAD 580 003.
3. SRI. TANUSH. S. VASHISHT,
AGED ABOUT 18 YEARS,
SON OF SUDHINDRA BELLIGUNDU
RESIDING AT 1246, BELLIRANGA,
6TH CROSS,JP NAGAR 1ST PHASE,
BANGALORE 560 078.
4. MASTER. VISHNU MADDIRALA,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF ANIL KUMAR MADDIRALA
RESIDING AT NA233, VIJAYA ENCLAVE APARTMENT,
MSRS NAGAR, BILEKAHALLI,
BENGALURU 560 076.
5. KUM. DISHA KURKURI
AGED ABOUT 17 YEARS
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF MAHAVEER DANDINKURKURI
RESIDING AT MIG3, HUBALI ROAD,
KHB COLONY, SIRSI 581 402.
KARNATAKA.
6. MASTER. SANJAY SARAVANAN
AGED ABOUT 17 YEARS
REPRESENTED THROUGH HIS NATURAL GUARDIAN
SON OF SARAVANAN SADASIVAM
RESIDING AT1043, CASA SERENITA,
SOBHA CITY, THANISANDRA MAIN ROAD,
BENGALURU 560 077.
7. MASTER. YASHODHARPINDIKURA,
SON OF MURALIDHARPINDIKURA,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
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RESIDING AT NO.16, 1ST CROSS, 4TH MAIN,
SANTOSHNAGAR, ATTUR LAYOUT,
YELAHANKA NEW TOWN,
BENGALURU 560 064.
8. MASTER. SAISRIHAN KUMAR YADALLA,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF SAIRAM KUMAR YADALLA,
RESIDING AT NO.54, SAI NILAYA,
1ST FLOOR, 2ND CROSS, 20TH MAIN,
BTM LAYOUT 2ND STAGE,
BENGALURU 560 076.
9. KUM. SEJAL SACHIN JOSHI
AGED ABOUT 17 YEARS
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF MR. SACHIN SRIKANT JOSHI
RESIDING AT A003, DAFFODILS ADARSH PALM RETREAT,
VTC, BELLANDUR PO,
BANGALORE560 103.
10 . MASTER. CHINMAY VIJAY KUMAR,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF VIJAY KUMAR S,
RESIDING AT 203, 17TH C MAIN,
SECTOR 4, HSR LAYOUT,
BANGALORE 560 102.
11 . KUM. PARINITA CHANDAN GURJAR,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF CHANDAN ACHYUTHGURJAR
RESIDING AT 299, TRIVARNA, 9TH MAIN,
2ND CROSS, BEML LAYOUT 5TH STAGE,
NEAR CRAZY PARK, RR NAGAR,
BANGALORE - 98.
12 . KUM. SHARANYARAJAN SRIVASTAVA,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF SUMITRAJAN SRIVASTAVA
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RESIDING AT FLAT NO. Y4001, GREENWOOD
REGENCY KAIKONDRAHALLI, SARJAPUR ROAD,
BANGALORE- 35.
13 . KUM. SNEHA MANIKANDAN,
AGED ABOUT 18 YEARS,
DAUGHTER OF MANIKANDAN VENKATARAMAN,
RESIDING AT HOUSE 34, GREENWOOD REGENCY,
SARJAPUR ROAD, DODDAKANNAHALLI,
BANGALORE - 35.
14 . SRI. ADVAIT SANDEEP RATNAPARKHE,
AGED ABOUT 18 YEARS,
SON OF SANDEEP ASHOK RATNAPARKHE,
RESIDING AT: A6F KLASSIK LANDMARK APARTMENT,
CHOODASANDRA ROAD, JUNNASANDRA,
BANGALORE - 35.
15 . KUM. SHRIKARI PRASAD PEDDAMATHAM,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF PRASAD SAKTHIVARAPEDDAMATHAM
RESIDING AT A304, STERLING TERRACES APARTMENTS,
100 FEET RING ROAD, BANASHANKARI 3RD STAGE,
BANGALORE - 85.
16 . KUM. ANIKA PALASAMUDRAM,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF DEEPAK PALASAMUDRAM
RESIDING AT NO.39, 4TH MAIN, 2ND CROSS,
VIJAYA BANK LAYOUT, BANGLORE - 76.
17 . SRI. ARJUN G KANAGAL,
AGED ABOUT 18 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF MR. GOPINATH KANAGAL
RESIDING AT 20, SURABHI, 1ST FLOOR,
17TH D MAIN, 7TH CROSS, 6TH BLOCK,
KORAMANGALA LAYOUT,
BANGALORE - 95.
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18 . SRI. ADITHYA SRINATH RAO,
AGED ABOUT 18 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF MR. SRINATH S RAO
RESIDING AT FLAT NO. M502,
MEGHANA SHALINI, 100 FEET RING ROAD,
PADMANABHANAGAR, VTC BIDARAHALLI,
BANASHANKARI 2ND STAGE, BANGALORE 560 070.
19 . MASTER. NILAN MANJUNATH,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF MR. MANJUNATH NAGAPPA,
RESIDING AT #133, SOBHA DEWFLOWER,
SARAKKI MAIN ROAD, JP NAGAR 1ST PHASE,
BANGALORE 560 078.
20 . MASTER. AMOGH KULKARNI,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF SMT. PALLAVI M AIRANI
RESIDING AT D 407, MANTRI APLYNE,
UTTARAHALLI, KENGERI MAIN ROAD,
NEAR PATALAMA TEMPLE,
BANASHANKARI 5TH STAGE,
BANGALORE 560 061.
21 . KUM. SUMEDHA KOSIGI,
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF GURURAJA RAO KOSIGI SHAROFF,
RESIDING AT 3012, SOBHA CLASSIC APARTMENT ,
HARALURU ROAD, OFF SARJAPUR ROAD,
BANGALORE 560 102.
22 . SRI. AAYUSH MAKKAR S/O MR. MANISH ,
AGED ABOUT 18 YEARS,
RESIDING AT VERA-607, SJR VERITY APT,
AMRITA COLLEGE ROAD,
NEAR LACASA RESTAURANT,
KASAVANAHALLI, BANGALORE 560 035.
...PETITIONERS
(BY SRI. YATHISH S., ADVOCATE)
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AND:
1. UNION OF INDIA
THROUGH MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA,
REPRESENTED THROUGH ITS SECRETORY,
NORTH BLOCK, NEW DELHI 110 001.
2. STATE OF KARNATAKA,
THROUGH PRINCIPAL SECRETORY
TO THE GOVERNMENT,
HIGHER EDUCATION DEPARTMENT,
VIDHANASOUDHA, BANGALORE 560 001.
3. KARANTAKA EXAMINATIONS AUTHORITY
REPRESENTED BY ITS EXECUTIVE DIRECTOR
SAMPIGE ROAD, 18TH CROSS,
MALLESHWARAM, BENGALURU 560 012.
...RESPONDENTS
(BY SRI.MALLANAGOUDA H., CGC FOR R1;
SMT.SAVITHRAMMA, AGA FOR R2;
SRI. N K RAMESH, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO WRIT OF
DECLARATION ISSUES TO THE EFFECT THAT THE IMPUGNED
RULE 5 OF THE KARNATAKA SELECTION OF CANDIDATES FOR
ADMISSION TO GOVT SEATS IN PROFESSIONAL EDUCATIONAL
INSTITUTION RULES 2006 TO THE EXTENT IT PRESCRIBES INDIAN
CITIZENSHIP IS NOT ENFORCEABLE AGAINST THE OVERSEAS
CITIZENS OF INDIA CARDHOLDERS AND ETC.,
IN W.P.NO.8531/2024:
BETWEEN:
1. KUM. NARAYA SHIBU NAIR
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
DAUGHTER OF SHIBU NAID RAJASEKHARAN
RESIDING AT 104, BELLEZA, NAMBIAR BUILDERS,
MUTHANALLUR CIRCLE, NARYANGHATTA,
BANGLAORE 560 099.
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2. MASTER ARYA SUNIL
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF SUNIL B KRISHNAREDDY
RESIDING AT NO.136, 2ND CROSS, 6TH BLOCK,
KORAMANGALA, BANGALORE 560 095.
3. MASTER. AASHRITH KARTHIKEYAN
AGED ABOUT 17 YEARS,
REPRESENTED BY NATURAL GUARDIAN
SON OF KARTHIKEYAN NATARAJAN,
RESIDING AT CPC ESTATES, HEBBASUR,
CHAMARAJANAGAR, KARNATAKA 571 342.
AMENDED V.C.O DATED 25.06.2024
4. KUM. SUKANYA HEGDE,
AGED ABOUT 17 YEARS,
DAUGHTER OF SUBHASH HEGDE
RESIDING AT H 202, MANTRI TRANQUIL,
KANAKAPURA ROAD, GUBBALALA,
BANGALORE 560 061.
...PETITIONERS
(BY SRI. YATHISH S., ADVOCATE)
AND:
1. UNION OF INDIA,
THROUGH MINISTRY OF HOME AFFAIRS
GOVERNMENT OF INDIA,
REPRESENTED THROUGH ITS SECRETARY,
NORTH BLOCK, NEW DELHI 110 001.
2. STATE OF KARNATAKA
THROUGH PRINCIPAL SECRETARY TO THE GOVERNMENT
HIGHER EDUCATION DEPARTMENT,
VIDHANA SOUDHA, BANGALORE 560 001.
3. KARNATAKA EXAMINATIONS AUTHORITY
REPRESENTED BY ITS EXECUTIVE DIRECTOR
SAMPIGE ROAD, 18TH CROSS,
MALLESHWARAM, BENGALURU 560 012.
...RESPONDENTS
(BY SRI. RAJASHEKAR S., ADVOCATE FOR R1;
SMT. SAVITHRAMMA, AGA FOR R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARATION
ISSUES TO THE EFFECT THAT, THE IMPUGNED RULE 5 OF THE
KARNATAKA SELECTION OF CANDIDATES FOR ADMISSION TO
GOVERNMENT SEATS IN PROFESSIONAL EDUCATIONAL
INSTITUTION RULES, 2006, TO THE EXTENT IT PRESCRIBES INDIA
CITIZENSHIP IS NOT ENFORCEABLE AGAINST THE OVER SEAL
CITIZENS OF INDIA CARDHOLDERS AND ETC.,
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In W.P.No.5531/2024, the petitioner seeks the following
reliefs:
” A. A writ of Declaration issues to the effect that, the
impugned Rule 5 of the Karnataka Selection of Candidates
for Admission to government seats in Professional
Educational Institution Rules, 2006, to the extent it
prescribes Indian Citizenship, is not enforceable against ht
Overseas Citizens for India Cardholders;
B. Issue a Writ in the nature of Mandamus directing the
State of Karnataka (Respondent no.2) and Karnataka
Examinations Authority (Respondent no. 3) to permit the
Petitioners to compete in the KCET-2024 examination and
further participate in the counseling and selection procedure
and allotment of seats in admission to engineering, medical,
architecture, yoga and Naturopathy, Veterinary, farm
science, B. Pharma and other professional courses in any
Government/Aided/Unaided/Private in the state of Karnataka
for the academic year 2024-2025 purely on the merit and
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examination.
C. Issue direction to the Respondent No.1 and 2 Union
of Indian and Karnataka State Government and the
Respondent No.2 Karnataka Examination Authority shall
take all steps as are necessary to refund the additional
amount collected during the application procedure when
compared to general merit (citizen) and further facilitate and
effectuate the aforesaid directions, forthwith and without any
delay in the matter, keeping in view the fast approaching
KCT-2024-25.
D. Order or Direction, permitting the Petitioner to
participate in the online counseling process, seat selection
and allotment of seats for the year 2024-25 for admission to
engineering, medical, architecture, yoga and naturopathy,
veterinary, farm science, B.Pharma and other professional
courses as per the information Bulletin for Application Cum
Verification Module for Both Government and Private seats.
ANNEXUR-H.
E. To issue any other writ, Order Direction which This
Hon’ble court Deems Fit. ”
2. In W.P.No.1529/2024, the petitioner seeks the
following reliefs:
“i. Declare that rule 5(1) of the Karnataka Selection of
Candidates for Admission to Government Seats in
Professional Educational Institution Rules, 2006 to the extent
it mandates that only an ‘Indian Citizen’ is eligible for
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(produced as Annexure-Q) andii. Declare that Section 2(1)(n) of the Karnataka Professional
Educational Institution (Regulation of Admission &
Determination of Fee) Act, 2006 to the extent that it includes
the ‘Overseas Citizens of India’ or ‘Overseas Citizen of India
Cardholders’ within the definition of “Non-resident Indian” as
ultra vires and unconstitutional (produced as Annexure-L).
iii. Issue a Writ of Certiorari or any other appropriate Writ,
Order or Direction, quashing clause 6.1 and 80(i) eligibility
and Eligibility Clauses for Government Seats to the extent
that ‘He/She is a citizen of India’ in the Information Bulletin
for Application cum verification module Common entrance
Test-2024 issued by the respondent No.2 produced marked
as Annexure-Y.iv. Issue a Writ of Mandamus or any other appropriate Writ,
Order or Direction, permitting the Petitioners to participate in
the Online counseling process, seat selection and allotment
of seats for the year 2024 for admission to engineering,
Medical, Architecture, Yoga and Naturopathy, Veterinary,
Farm Science, B.Pharma and other professional courses as
per the Information Bulletin for application cum verification
module for both Government and Private seats.
v. Direct the Respondents to pay the costs of this petition
and to grant such other and further reliefs as this Hon’ble
Court may deem fit to grant, having regard to the facts and
circumstances of the case, in the interests of justice and
equity.”
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3. In W.P.No.2401/2024, the petitioner seeks the
following reliefs:
“A. A Writ of Declaration issues to the effect that, the
impugned Rule 5 of the Karnataka Selection of
Candidates for Admission to government seats in
Professional Educational Institution Rules, 2006, to the
extent it prescribes Indian Citizenship, is not enforceable
against the Overseas Citizens of India Cardholders;
B. Issue a Writ in the nature of Mandamus directing the
State of Karnataka (Respondent No.2) and Karnataka
Examination Authority (Respondent No.3) to permit the
Petitioners to compete in the KCET-2024 examination
and further participate in the counseling and selection
procedure and allotment of seats in admission to
engineering, medical, architecture, yoga and Naturopathy,
Veterinary, farm science, B.Pharma and other
professional courses in any
Governmetn/Aided/Unaided/Private in the state of
Karnataka for the academic year 2024-2025 purely on the
merit and ranking in general category in the imminent
KCET-2024 examination.
C. Issue direction to the Respondent No.1 and 2 Union of
India and Karnataka State Government and the
Respondent No.3 Karnataka Examination Authority shall
take all steps as are necessary to refund the additional
amount collected during the application procedure when
compared to general merit (citizen) and further facilitate
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without any delay in the matter, keeping in view of the fast
approaching KCET-2024-25.
D. Order of Direction, permitting the Petitioners to
participate in the online counseling process, seat
selection and allotment of seats for the year 2024-25 for
admission to engineering, medical, architecture, yoga and
naturopathy, veterinary, farm science, B.pharma and
other professional courses as per the information Bulletin
for Application Cum Verification Module for Both
Government and Private seats. Annexure-H.E. To issue any other Writ, Order Direction which this
Hon’ble Court Deems Fit.”
4. In W.P.No.8531/2024, the petitioner seeks the
following reliefs:
“A. A Writ of Declaration issues to the effect that, the
impugned Rule 5 of the Karnataka Selection of Candidates
for Admission to government seats in Professional
Educational Institution Rules, 2006, to the extent it
prescribes Indian Citizenship, is not enforceable against the
Overseas Citizens of India Cardholders;
B. Issue a Writ in the nature of Mandamus directing the
State of Karnataka (Respondent No.2) and Karnataka
Examinations Authority (Respondent No.3) to permit the
Petitioners to compete in the KCET-2024 examination and
further participate in the counseling and selection procedure
and allotment of seats in admission toengineering, medical,
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WP No.8531 of 2024architecture, yoga and Naturopathy, Veterinary, farm
science, B. Pharma and other professional courses in any
Government/Aided/Unaided/Private in the state of
Karnataka for the academic year 2024-25 purely on the
merit and ranking in general category in the imminent
KCET-2024 examination.
C. Issue direction to the Respondent No.1 and 2 Union of
India and Karnataka State Government and the
Respondent No.3 Karnataka Examination Authority shall
take all steps as are necessary to refund the additional
amount collected during the application procedure when
compared to general merit (citizen) and further facilitate and
effectuate the aforesaid directions, forthwith and without
any delay in the matter, keeping in view the fast
approaching KCET-2024-25.
D. Order or Direction, permitting the Petitioners to
participate in the online counseling process, set selection
and allotment of seats for the year 2024-25 for admission to
engineering, medical, architecture, yoga and naturopathy,
veterinary, farm science, B.Pharma and other professional
courses as per the information Bulleting for Application Cum
Verification Module for Both Government and Private seats.
Annexure-G, vide order dated 10.01.2024.
E. To issue any other Writ, Order, Direction which this
Honb’le Court deems fit.”
5. Heard learned counsel for both parties and perused
the material on record.
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6. Though several contentions have been urged by both
sides in support of their respective claims, learned counsel for the
respondent – Karnataka Examination Authority, learned counsel for
the petitioner jointly submit that during pendency of the present writ
petitions, the petitioners have been granted admission on par with
Indian Citizens and as such, nothing further survives for
consideration in the present petition, especially in the light of the
judgment of the Apex Court in the case of Anushka Rengunthwar
& Ors Vs. Union of India & Ors. – (2023) 11 SCC 209, wherein it
is held as under:
” 1. The petitioners in all these petitions are the Overseas
Citizens of India cardholders. They are all students who
have just reached the full age or are below this age. All the
petitioners are aspiring to become doctors by pursuing the
MBBS course by securing admission through NEET
selection process and thereafter the postgraduation as also
the super specialty in the field of Medicine. Some of them
are also seeking to pursue postgraduation and also a super
specialty.
2. For the purpose of narration of facts, the averments as
put forth in WP (C) No. 891 of 2021 which was taken as the
lead case is noted. The petitioners contend that they have
been putting in all efforts and were preparing to appear for
the NEET-UG examinations based on the right which was
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and 5-1-2009. Through the said notifications, the Overseas
Citizens of India (“OCI” for short) cardholders were given
the right of parity with non-resident Indians (“NRIs” for
short) in respect of the facilities as notified, including in the
field of education, who in turn had the parity with Indian
citizens. Through the Notification dated 5-1-2009, the said
right to education in India was also extended further, to
appear for the All India pre-medical test or such other tests
to make them eligible for admission in pursuance to the
provisions contained in the relevant acts. In view of such
right being extended to the OCI cardholders by
Respondent 1 in exercise of the powers under Section 7-
B(1) of the Citizenship Act, 1955 (“the 1955 Act” for short),
the petitioners were also assured of appearing for the
NEET-UG exam so as to compete to secure a seat to
pursue the medical course.
3. Such right was available to the petitioners from a point
almost immediately after their birth, since the petitioners in
these petitions were born in the year 2003 onwards. Except
for the fact that they were born in a foreign country, they
had lived in this country for periods ranging from 10 to
15/17 years. In that view, the entire educational career was
pursued in India, including the 12th standard so as to
qualify for the NEET-UG examinations and MBBS course.
In fact, in most of the cases, both parents of the petitioners
herein are Indian nationals and in any case, one of them is
an Indian national. Even in cases where both the parents
are OCI cardholders, the children have lived most of their
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life in India since their roots remain to be in India where
grandparents and family are here.
4. When this was the position Respondent 1 issued the
Notification dated 4-3-2021 in exercise of the power under
Section 7-B(1) of the 1955 Act whereunder the existing
right of appearing for the entrance exams to compete with
Indian citizens for the seat was taken away and restricted
the admission only as against the seats reserved for the
non-resident Indians or for supernumerary seats. The
proviso to Clause 4(ii) of the impugned Notification dated 4-
3-2021 in fact clarifies that the OCI cardholders shall not be
eligible for admission against any seat reserved exclusively
for Indian citizens. This is done so, by providing an
explanation that the OCI cardholder is a foreign national
holding passport from a foreign country and is not a citizen
of India.
5. The petitioners, therefore, contend that such notification
falls foul of the Doctrine of Non-Retrogression since the
right which was being bestowed from the year 2005,
instead of progressing and maturing to be a better right
was being curtailed and reversed. The petitioners also
contend that the right guaranteed under Articles 14 and 21
of the Constitution of India is violated since such right is
available to “any person”, even if one is not a citizen of
India.
6. In the instant facts, the petitioners have no quarrel with
the validity of Sections 7-B(1), 7-D, 8(1) and 9(1) of the
1955 Act. The petitioners while accepting the sovereign
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power of the respondents, are only aggrieved by the
manner in which the impugned Notification dated 4-3-2021
is issued, by which an existing right has been taken away.
The petitioners thus contend that they are not only OCI
cardholders, but are resident OCI cardholders and
therefore they should be treated like any other citizen of
India. Since Respondent 1 through the impugned
notification has disentitled the OCI cardholders from the
process of admission to the seats to which the Indian
citizens are entitled to participate in the selection process,
they have approached this Court assailing the impugned
Notification dated 4-3-2021, in these petitions under Article
32 of the Constitution of India.
7. The petitioners have accordingly sought for issue of an
appropriate writ to quash Clause 4(ii), its proviso and
Explanation (1) as contained in the impugned Notification
dated 4-3-2021 bearing F. No. 2611/CC/05/2018-OCI.
8. Respondent 1 has filed its objection statement seeking
to justify the notification. It is necessary to take note herein
that though in the instant batch of the petitions, the validity
of the provisions in the Citizenship Act has not been
assailed, in another petition bearing WP (C) No. 1397 of
2020 since there is a challenge to the said provisions and
was earlier tagged with these petitions, the respondents in
the common counter-affidavit have also referred to the
provisions of the Act and the Constitution of India in order
to justify its validity. Since those aspects do not require
consideration in this batch of cases, the objections by
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Respondent 1 insofar as seeking to justify the issue of the
impugned Notification dated 4-3-2021 alone is taken note
of.
9. In that regard, it is contended that as per the Notification
dated 11-4-2005, the OCI cardholders were given parity
with NRIs in the educational field. Under the Notification
dated 5-1-2009, the OCI cardholder students were entitled
to appear for All India pre-medical test and such other tests
to make them eligible for admission. It is averred that a
harmonious reading of 2005 and 2009 notifications leads to
the conclusion that the OCI cardholder students have parity
to the NRIs and therefore can lay claim only to NRI quota
seats. The educational right of OCI cardholder students
were discussed in a meeting of the Committee of
Secretaries held on 19-7-2018 wherein it was agreed that
the OCI cardholders may be treated on a par with NRI, in
the quota of NRI and they ought not to be eligible against
seats meant for Indian citizens. Hence, it was felt that
relevant notifications be issued by the Ministry of Home
Affairs.
10. In that view, the consolidated Notification dated 4-3-
2021 was issued in exercise of the power under Section 7-
B(1) of the 1955 Act whereby the earlier notifications of
2005, 2007 and 2009 were incorporated so as to bring
clarity with regard to the various provisions. It is contended
that the rationale is to protect the rights of the Indian
citizens and in such matters, State may give preference to
its citizens vis-à-vis foreigners holding OCI Cards. In that
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regard it is stated that the number of seats available for
medical and engineering courses in India are very limited
and does not fully cater to the requirement of the Indian
citizens. Hence the right to admission to such seats should
be primarily available to Indian citizens instead of
foreigners including OCI cardholders. It is contended that
the right to claim the protection under Articles 14, 19 and
21 of the Constitution is not available to a person who is
not a citizen, more particularly in matters of education and
is limited to the privilege bestowed through a notification
issued under the Act. Respondent 1 therefore seeks to
justify and sustain the Notification dated 4-3-2021, a
portion of which is under challenge.
11. In the light of the above we have heard Mr P.
Chidambaram and Mr K.V. Viswanathan, learned Senior
Counsel for the respective petitioners as also Mr Kunal
Cheema and the other learned counsel appearing for the
respective petitioners. We have also heard Ms Aishwarya
Bhati, learned Additional Solicitor General for the
respondents. In that light, we have perused the petition
papers and all the documents made available to us.
12. The summary of the arguments on behalf of the
petitioners is as hereunder:
This Court vide order dated 8-11-2021 in Radhika
Thappeta v. Union of India [Radhika Thappeta v. Union of
India, 2021 SCC OnLine SC 3418] passed a general order
applicable to all eligible candidates who are similarly
situated to appear for counselling in general on a par with
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of courses stated therein.
Many of the petitioners in WP No. 891 of 2021, who were
all NEET-2021 aspirants, appeared for NEET-2021 and
also qualified and have secured admissions and are
pursuing their academic courses. They would be in their
2nd year of studies. There would be other OCIs also who
are not part of the writ petitions, but would have taken the
benefit of the order dated 8-11-2021 [Radhika Thappeta v.
Union of India, 2021 SCC OnLine SC 3418] passed by this
Hon’ble Court, which was a general order applicable to all.
The OCIs have been equated with NRIs all along since
2005 as regards various rights conferred under Section 7-
B(1) of the Citizenship Act and more particularly rights
regarding education. That vide Notification dated 5-1-2009,
OCIs were permitted to carry out various professions in
India as enumerated therein.
That in view of the various rights having been given and
more particularly education rights and right to work in India
and also because many OCIs have their
grandparents/families/roots in India, they came back to
India long back and have been residing and working here
and contributing to the nation like any other citizen in the
form of taxes, etc. The span of living here ranges as long
as about 16 to 17 years.
That till up to 4-3-2021 (impugned notification), OCIs were
entitled to seek admission to all seats like NRIs were (who
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supernumerary seats, but pursuant to the said portion of
the impugned notification, OCIs are now entitled to only
seats reserved for NRI i.e. NRI seats or supernumerary
seats, which is discriminatory and violative of Articles 14
and 21 of the Constitution of India.
Article 14 prohibits class legislation, but permits reasonable
classification. However, for reasonable classification to be
valid, there are twin tests i.e. (i) classification must be
founded on intelligible differentia and (ii) that the differentia
must have a rational relation to the object sought to be
achieved. The seats have remained, unfilled. Hence Indian
citizens are not prejudiced.
That Articles 14 and 21 are available to “persons” and not
only citizens and hence the OCIs who are “persons” and
who have been residing in India for years together, in view
of the rights of living (since life long visa is granted) and
undertaking various professions in India granted under
Section 7-B vide 5-1-2009 Notification, have a right not to
be discriminated against, which is guaranteed under Article
14 and also have a right of meaningful existence, which is
a facet of Article 21 of the Constitution of India. Moreover,
there is no valid rationale for having withdrawn the said
rights of being entitled to various seats other than seats
reserved for NRIs, which they have been enjoying for
considerable amount of time on a par with NRIs, who today
(Notification dated 12-10-2022) also are entitled to all seats
including seats reserved for non-residents.
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It is further contended that the only object as can be culled
out from the counter-affidavit of Respondent 1 appears to
be to protect rights of Indian citizens as seats are limited.
However, if the statistics of past few years i.e. 2018-2019
onwards are seen, even when the OCIs were entitled to all
seats and they took admissions then, few hundred seats
were remaining vacant at the end of final counselling. In
fact the data also shows that seats have been significantly
increased year on year, yet at the end of final counselling
seats have remained vacant. Hence, it is clear that the said
objective is a misnomer and the said portion of the
impugned notification smacks of arbitrariness and non-
application of mind.
The said portion of the impugned notification falls foul of
the doctrine of “non-retrogression” as discussed in Navtej
Singh Johar [Navtej Singh Johar v. Union of India, (2018)
10 SCC 1 : (2019) 1 SCC (Cri) 1] , as it is resulting in
withdrawal of the rights which the OCIs have enjoyed for
the past several years.
OCIs have taken up particular stream of education, passing
10th and 12th from schools in same state, meeting
domicile/residence requirements, keeping in mind the
rights which were available to them and hence their such
acts would be saved as “things done” as per the words
“except as respect things done or omitted to be done
before such supersession” appearing in impugned
Notification dated 4-3-2021. In support of this submission,
reliance was placed on Universal Imports Agency v. Chief
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Controller of Imports & Exports [Universal Imports Agency
v. Chief Controller of Imports & Exports, 1960 SCC OnLine
SC 42 : (1961) 1 SCR 305 : AIR 1961 SC 41] .
The OCIs were entitled to have “legitimate expectation” as
enshrined in Navjyoti [Navjyoti Coop. Group Housing
Society v. Union of India, (1992) 4 SCC 477] that the said
rights will continue to be available to them and not
retrograded. That only a limited number of OCIs take the
exam and out of them only a minuscule number clear the
same and become eligible for admission. Hence no grave
prejudice was being caused if the OCIs were allowed to
seek admission to all seats based on merit and withdrawal
of the same is therefore arbitrary and unreasonable.
13. The summary of the contention on behalf of the
respondents as put forth by the learned Additional Solicitor
General is as follows. The present case essentially raises a
singular issue with regard to the classification made
between Indian citizens and Overseas Citizens of India
cardholders and the same being statutory, whether it is
sustainable. It is contended that the classification made by
the impugned notification is supported by statutory
provisions which legitimises the State’s interest and
ensures that the limited number of seats in educational
institutions are available to Indian citizens and not taken
away by foreigners.
14. It is contended that for any sovereign country, the rights
and privileges that are extended to the non-citizens are in
exercise of inviolable sovereign powers and are essentially
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unfettered and unqualified. The courts have consistently
declined to interfere in visa, immigration or such issues
relating to foreigners. The power of exclusion of foreigners
being an incident of sovereignty is that of the Government
to be exercised. The OCI regime is a privilege extended by
Parliament and the Executive, falling squarely in the
domain of the sovereign policy of the country. The
citizenship is regulated in Part II (Articles 5 to 11) of the
Constitution of India pursuant to which the Citizenship Act
is enacted to regulate the same. Section 2(ee) of the
Citizenship Act defines OCI cardholders to mean a person
registered as an Overseas Citizens of India cardholder by
the Central Government under Section 7-A of the Act. The
learned Additional Solicitor General on referring to the said
constitutional provisions and the Citizenship Act would
point out that the privilege of securing education in India
was pursuant to the conferment of the same in terms of
Section 7-B of the Act by the issue of notification.
15. The Notification dated 4-3-2021 which is impugned in
these petitions is issued by the Ministry in continuation of
the policy of the Union of India in conformity with the
constitutional principles. With reference to the Notification,
it is contended that it is very evident and clear that the
intention was not to give the OCI cardholders parity with
Indian citizens at any stage with regard to admission but
the parity was always with NRIs. The policy was consistent
from 2004 when the OCI cardholders’ mechanism was
started, to treat them on a par with the NRIs. However,
there was some dichotomy in the interpretation of the
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earlier Notifications and the benefit which was available to
the NRIs for the seats along with Indian citizen students
was also being extended. Therefore, after comprehensive
consultation on the educational rights of the OCI
cardholders in the meeting held on 19-7-2018 it was
decided that the OCI cardholders may be treated on a par
with NRIs in the quota for NRI seats and they would not be
eligible against the seats meant for Indian citizens.
16. Hence the issue of the consolidated Notification of 4-3-
2021 was in supersession of earlier Notifications of 2005,
2007 and 2009 to bring clarity with regard to various
provisions which were under consideration of the Ministry
of Home Affairs for quite some time. In this context,
consultations were held with all stakeholders and the
Notification was issued.
17. Reference to the judgments cited by the learned
Additional Solicitor General to substantiate her contention
that the consideration with regard to the validity of the
Notification cannot be of a similar purport when it is
assailed by the citizens of India and other decisions
referred to would be considered at the appropriate stage.
The sum and substance of the contention is that the
decision is with the object of legitimate public interest and
in the interest of the Indian citizens. Hence, it is contended
that the impugned Notification does not call for interference
and the petitioners are not entitled to seek any relief from
this Court.
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18. In the light of rival contentions, at the threshold it is
necessary to take note that though the arguments were
elaborately addressed and the learned Additional Solicitor
General referred in detail to the provisions of the
Constitution relating to citizenship and also the sovereign
power of Respondent 1 under the 1955 Act, we do not find
it necessary to dwell into much detail in this batch of
petitions. This is for the reason that from the very case put
forth by the petitioners they are not questioning the power
of Respondent 1 to issue notifications prescribing the right
in respect of OCI cardholders. However, the grievance is
only that a right which existed in their favour has been
altered to their detriment without application of mind to the
fact that most of the petitioners have spent their entire
lifetime in India and also pursued their educational careers
in India including appearing for the qualifying exam. As
such the only grievance of the petitioners herein is with
regard to the proviso to Clause 4(ii) and Explanation
contained in the impugned Notification dated 4-3-2021
whereunder a limitation has been prescribed wherein they
have been made entitled only to the seats available to
NRIs and they have been specifically excluded from
seeking admission to the seats which are exclusively
available to the Indian citizens.
19. In that regard, the provisions of the 1955 Act which are
to be noted read as hereunder:
“7-A. Registration of Overseas Citizen of India
cardholder.–(1) The Central Government may, subject to
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prescribed, on an application made in this behalf, register
as an Overseas Citizen of India cardholder–
(a) any person of full age and capacity–
(i) who is citizen of another country, but was a citizen of
India at the time of, or at any time after, the
commencement of the Constitution; or
(ii) who is citizen of another country, but was eligible to
become a citizen of India at the time of the commencement
of the Constitution; or
(iii) who is citizen of another country, but belonged to a
territory that became part of India after the 15th day of
August, 1947; or
(iv) who is a child or a grandchild or a great grandchild of
such a citizen; or
(b) a person, who is a minor child of a person mentioned in
clause (a); or
(c) a person, who is a minor child, and whose both parents
are citizens of India or one of the parents is a citizen of
India; or
(d) spouse of foreign origin of a citizen of India or spouse of
foreign origin of an Overseas Citizen of India cardholder
registered under Section 7-A and whose marriage has
been registered and subsisted for a continuous period of
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not less than two years immediately preceding the
presentation of the application under this section:
Provided that for the eligibility for registration as an
Overseas Citizen of India cardholder, such spouse shall be
subjected to prior security clearance by a competent
authority in India:
Provided further that no person, who or either of whose
parents or grandparents or great grandparents is or had
been a citizen of Pakistan, Bangladesh or such other
country as the Central Government may, by notification in
the Official Gazette, specify, shall be eligible for registration
as an Overseas Citizen of India cardholder under this sub-
section.
(2) The Central Government may, by notification in the
Official Gazette, specify the date from which the existing
Persons of Indian Origin cardholders shall be deemed to
be Overseas Citizens of Indian cardholders.
Explanation.–For the purposes of this sub-section,
“Persons of Indian Origin cardholders” means the persons
registered as such under notification number 26011/4/98
F.I., dated 19-8-2002, issued by the Central Government in
this regard.
(3) Notwithstanding anything contained in sub-section (1),
the Central Government may, if it is satisfied that special
circumstances exist, after recording the circumstances in
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writing, register a person as an Overseas Citizen of India
cardholder.
7-B. Conferment of rights on Overseas Citizen of India
cardholder.–(1) Notwithstanding anything contained in
any other law for the time being in force, an Overseas
Citizen of India cardholder shall be entitled to such rights,
[other than the rights specified under sub-section (2)] as
the Central Government may, by notification in the Official
Gazette, specify in this behalf.
(2) An Overseas Citizen of India cardholder shall not be
entitled to the rights conferred on a citizen of India–
(a) under Article 16 of the Constitution with regard to
equality of opportunity in matters of public employment;
(b) under Article 58 of the Constitution for election as
President;
(c) under Article 66 of the Constitution for election of Vice-
President;
(d) under Article 124 of the Constitution for appointment as
a Judge of the Supreme Court;
(e) under Article 217 of the Constitution for appointment as
a Judge of the High Court;
(f) under Section 16 of the Representation of the People
Act, 1950 (43 of 1950) in regard to registration as a voter;
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(g) under Sections 3 and 4 of the Representation of the
People Act, 1951 (43 of 1951) with regard to the eligibility
for being a member of the House of the People or of the
Council of States, as the case may be;
(h) under Sections 5, 5-A and 6 of the Representation of
the People Act, 1951 (43 of 1951) with regard to the
eligibility for being a member of the Legislative Assembly or
the Legislative Council, as the case may be, of a State;
(i) for appointment to public services and posts in
connection with the affairs of the Union or of any State
except for appointment in such services and posts as the
Central Government may, by special order in that behalf,
specify.
(3) Every notification issued under sub-section (1) shall be
laid before each House of Parliament.”
(emphasis supplied)
20. The abovenoted provisions were inserted initially during
the year 2004 and were thereafter substituted on the
introduction of the provisions in the year 2005 and
substituted time to time thereafter. On foreign citizens of
such category being given the status of OCI cardholders, it
also provided for conferment of rights on OCI cardholders
as contemplated under Section 7-B of the 1955 Act
(supra).
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21. In exercise of the said power under Section 7-B(1) of
the 1955 Act the Notification dated 11-4-2005 was issued
which provides as hereunder:
“MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, 11-4-2005
S.O. 542(E).–In exercise of the powers conferred by sub-
section (1) of Section 7-B of the Citizenship Act, 1955 (57
of 1955), the Central Government hereby specifies the
following rights to which the persons registered as
Overseas Citizens of India under Section 7-A of the said
Act shall be entitled, namely:
(a) grant of multiple entry lifelong visa for visiting India for
any purpose;
(b) exemption from registration with Foreign Regional
Officer or Foreign Registration Officer for any length of stay
in India; and
(c) parity with non-resident Indians in respect of all facilities
available to them in economic, financial and educational
fields except in matters relating to the acquisition of
agricultural or plantation properties.
[F. No. 26011/2/2005-IC]
Durga Shanker Mishra, Jt. Secy.”
(emphasis supplied)
22. Through the said notification, apart from granting
multiple entry life-long visa for visiting India for any
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purpose, insofar as economic, financial and educational
fields, parity with non-resident Indians was provided,
except for acquisition of agricultural or plantation
properties. By a subsequent Notification dated 5-1-2007
issued under Section 7-B(1) of the 1955 Act, though no
right relating to the field of education was referred to, the
OCI cardholders were given similar treatment with non-
resident Indians in the matter of inter-country adoption of
Indian children and also to be treated on a par with the
Indian nationals in the matter of tariffs in air fares and also
for same entry fee being charged to domestic Indian
visitors to visit national parks and wildlife sanctuaries.
23. Further, a Notification dated 5-1-2009 relating to
pursuing professions and admission to professional course
was issued, which reads as hereunder:
“MINISTRY OF OVERSEAS INDIAN AFFAIRS
NOTIFICATION
New Delhi, 5-1-2009
S.O. 36(E).– In exercise of the powers conferred by sub-
section (1) of Section 7-B of the Citizenship Act, 1955 (57
of 1955), and in continuation of the notifications of the
Government of India in the Ministry of Home Affairs
number S.O. 542(E), dated 11-4-2005 and in the Ministry
of Overseas Affairs S.O. 12(E), dated 6-1-2007, the Central
Government hereby specifies the following rights to which
the persons registered as the overseas citizen of India
under Section 7-A of the said Act, shall be entitled, namely:
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(a) Parity with non-resident Indian in respect of–
(i) Entry fees to be charged for visiting the national
monuments, historical sites and museums in India;
(ii) Pursuing the following professions in India, in
pursuance of the provisions contained in the relevant act,
namely:
(i) Doctors, dentists, nurses and pharmacists;
(ii) Advocates;
(iii) Architects;
(iv) Chartered accountants;
(b) To appear for the All India pre-medical test or such
other tests to make them eligible for admission in
pursuance of the provisions contained in the relevant Acts.
[F. No. OI-15013/13/2008-DS]
D.N. Srivastava, Jt. Secy.”
24. Through the said Notification dated 5-1-2009 the OCI
cardholders were given the right to pursue the professions
indicated therein, in India and also to appear for the All
Indian pre-medical test or such other tests to make them
eligible for admission in pursuance of the provisions
contained in the relevant Acts. Since NRIs had parity with
the Indian citizens in that regard, the same benefit became
extended to the OCI cardholders including the petitioners
herein.
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25. A cumulative perusal of the three notifications of 2005,
2007 and 2009 heavily relied on by the learned Senior
Counsel for the petitioners would certainly indicate that
from the stage of amendment to the 1955 Act through
Sections 7-A to 7-D thereof and the notifications issued
pursuant thereto, conferring rights under Section 7-B(1)
and such right being expanded from stage to stage, it
would indicate that based on the need, progression was
made in conferring better right to the Overseas Citizens of
India who, except for the incident of their birth in a foreign
country were in all other respects similarly placed as that of
Indian citizens and the limited foreign affiliation of NRI and
OCI cardholders made them to be compared with each
other for parity. In fact, for the purpose of air fares and
entry fee to places of interest, they were given parity with
Indian nationals. It is in that view contended that taking
away such a right that was available in the changing social
scenario would amount to retrogression when in fact better
right should have been conferred.
26. In that background, it would be necessary to refer to
the impugned Notification dated 4-3-2021 which reads as
hereunder:
“MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, 4-3-2021
S.O. 1050(E).–In exercise of the powers conferred by sub-
section (1) of Section 7-B of the Citizenship Act, 1955 (57
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Government of India in the Ministry of Home Affairs
published in the Official Gazette vide number S.O. 542(E),
dated 11-4-2005 and the notifications of the Government of
India in the erstwhile Ministry of Overseas Indian Affairs
published in the Official Gazette vide numbers S.O. 12(E),
dated 5-1-2007 and S.O. 36(E), dated 5-1-2009, except as
respect things done or omitted to be done before such
supersession, the Central Government hereby specifies the
following rights to which an Overseas Citizen of India
cardholder (hereinafter referred to as “the OCI cardholder”)
shall be entitled, with effect from the date of publication of
this notification in the Official Gazette, namely:
(1) grant of multiple entry lifelong visa for visiting India for
any purpose:
Provided that for undertaking the following activities, the
OCI cardholder shall be required to obtain a special
permission or a special permit, as the case may be, from
the competent authority or the Foreigners Regional
Registration Officer or the Indian Mission concerned,
namely:
(i) to undertake research;
(ii) to undertake any missionary or tabligh or
mountaineering or journalistic activities;
(iii) to undertake internship in any foreign diplomatic
missions or foreign government organisations in India or to
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take up employment in any foreign diplomatic missions in
India;
(iv) to visit any place which falls within the protected or
restricted or prohibited areas as notified by the Central
Government or competent authority;
(2) exemption from registration with the Foreigners
Regional Registration Officer or Foreigners Registration
Officer for any length of stay in India:
Provided that the OCI cardholders who are normally
resident in India shall intimate the jurisdictional Foreigners
Regional Registration Officer or the Foreigners Registration
Officer by email whenever there is a change in permanent
residential address and in their occupation;
(3) parity with Indian nationals in the matter of–
(i) tariffs in air fares in domestic sectors in India; and
(ii) entry fees to be charged for visiting national parks,
wildlife sanctuaries, the national monuments, historical
sites and museums in India;
(4) parity with non-resident Indians in the matter of–
(i) inter-country adoption of Indian children subject to the
compliance of the procedure as laid down by the
competent authority for such adoption;
(ii) appearing for the all India entrance tests such as
National Eligibility cum Entrance Test, Joint Entrance
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Examination (Mains), Joint Entrance Examination
(Advanced) or such other tests to make them eligible for
admission only against any non-resident Indian seat or any
supernumerary seat;
Provided that the OCI cardholder shall not be eligible for
admission against any seat reserved exclusively for Indian
citizens.
(iii) Purchase or sale of immovable properties other than
agricultural land or farm house or plantation property; and
(iv) Pursuing the following professions in India as per the
provisions contained in the applicable relevant statutes or
Acts as the case may be, namely:
(a) doctors, dentists, nurses and pharmacists;
(b) advocates;
(c) architects;
(d) chartered accountants;
(5) in respect of all other economic, financial and
educational fields not specified in this notification or the
rights and privileges not covered by the notifications made
by the Reserve Bank of India under the Foreign Exchange
Management Act, 1999 (42 of 1999), the OCI cardholder
shall have the same rights and privileges as a foreigner.
Explanation.–For the purposes of this notification–
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(1) The OCI cardholder (including a PIO cardholder) is a
foreign national holding passport of a foreign country and is
not a citizen of India.
(2) “Non-resident Indian” shall have the same meaning as
assigned to it in the Foreign Exchange Management
(Acquisition and Transfer of Immovable Property in India)
Regulations, 2018 made by Reserve Bank of India under
the Foreign Exchange Management Act, 1999 (42 of 1999)
and who fulfils the “non-resident Indian” status as per the
Income Tax Act, 1961 (43 of 1961).
[F. No. 26011/CC/05/2018-OCI]
PRAMOD KUMAR, Director”
27. A perusal of the Notification dated 4-3-2021 would ex
facie indicate that the rights bestowed thereunder on the
OCI cardholders are in fact a consolidation of the rights
which had been bestowed through the Notification dated
11-4-2005, 5-1-2007 and 5-1-2009. However, the
impugned portion of the notification is the portion which has
been emphasised i.e. the proviso to Clause 4(ii) and
Explanation (1) thereto and limiting the parity only to NRI
seats and supernumerary seats. Through the impugned
portion of the notification, the parity which existed with non-
resident Indians including in the field of education has been
modified to indicate their eligibility for admission only
against any “non-resident Indian seat” or any
supernumerary seat.
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28. It is relevant to take note herein that the non-resident
Indians apart from the seats reserved only for non-resident
Indians, are also entitled to participate in the selection
process for allotment of seats along with the Indian citizens
for the remaining seats as well, which benefit was hitherto
available to OCI cardholders by virtue of their parity with
NRIs. However, by presently specifying that the OCI
cardholders would be eligible for only the non-resident
Indian seat or any supernumerary seat, the right available
to the OCI cardholders is only for the seats which are
reserved as NRI quota seats, for which they would have to
compete with the NRI candidates for the limited number of
seats, for which higher fee structure is also fixed. The
proviso thereto makes it clear that the OCI cardholders
shall not be eligible for admission against any seat
reserved exclusively for Indian citizens.
29. The provision contained in the impugned portion of the
Notification dated 4-3-2021 would indicate that the OCI
cardholders even if they have settled down in India and
have undergone their entire educational course in India but
not having renounced the citizenship of a foreign country
and not having acquired the citizenship of India will now be
denied the opportunity of securing a medical seat in the
general pool of Indian citizens including NRIs and will have
to compete only for the limited seats available under the
NRI quota, which would be a denial of an opportunity of
education to such OCI cardholders which was hitherto
available. It is in that view contended that a legitimate
expectation of the petitioners herein is being defeated and
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they are also being discriminated upon due to which there
is a violation of Article 14 of the Constitution.
30. In the above backdrop it would be appropriate to refer
to the precedents cited and relied upon by the learned
counsel for all the parties including the respondents.
31. In support of the case of the petitioners, Shri P.
Chidambaram, learned Senior Counsel placed reliance on
the decision in Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] , to contend
that unreasonable classification is not permissible, wherein,
inter alia, it is held as hereunder : (SCC pp. 283-84, para 7)
“7. Now, the question immediately arises as to what is the
requirement of Article 14 : what is the content and reach of
the great equalising principle enunciated in this article?
There can be no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which rests securely
the foundation of our democratic republic. And, therefore, it
must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to
truncate its all-embracing scope and meaning, for to do so
would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire
limits. We must reiterate here what was pointed out by the
majority in E.P. Royappa v. State of T.N. [E.P. Royappa v.
State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165]
namely, that : (SCC p. 38, para 85)
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’85. … From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and
is therefore violative of Article 14.’
Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the test
of reasonableness in order to be in conformity with Article
14. It must be “right and just and fair” and not arbitrary,
fanciful or oppressive; otherwise, it would be no procedure
at all and the requirement of Article 21 would not be
satisfied.”
32. On the contention relating to the doctrine of non-
retrogression the decision in Navtej Singh Johar v. Union of
India [Navtej Singh Johar v. Union of India, (2018) 10 SCC
1 : (2019) 1 SCC (Cri) 1] is relied upon, wherein it is
observed as hereunder : (SCC p. 125, paras 199-202)
“199. What the words of Lord Roskill suggest is that it is not
only the interpretation of the Constitution which needs to be
pragmatic, due to the dynamic nature of a Constitution, but
also the legal policy of a particular epoch must be in
consonance with the current and the present needs of the
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society, which are sensible in the prevalent times and at
the same time easy to apply.
200. This also gives birth to an equally important role of the
State to implement the constitutional rights effectively. And
of course, when we say State, it includes all the three
organs, that is, the legislature, the executive as well as the
judiciary. The State has to show concerned commitment
which would result in concrete action. The State has an
obligation to take appropriate measures for the progressive
realisation of economic, social and cultural rights.
201. The doctrine of progressive realisation of rights, as a
natural corollary, gives birth to the doctrine of non-
retrogression. As per this doctrine, there must not be any
regression of rights. In a progressive and an ever-
improving society, there is no place for retreat. The society
has to march ahead.
202. The doctrine of non-retrogression sets forth that the
State should not take measures or steps that deliberately
lead to retrogression on the enjoyment of rights either
under the Constitution or otherwise.”
33. The decision in LIC v. Consumer Education &
Research Centre [LIC v. Consumer Education & Research
Centre, (1995) 5 SCC 482] was relied on to contend that
every activity of public authority must be informed by
reasons and guided by public interest and the exercise of
discretion or power by public authority must be judged by
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that standard. Paras 24 and 30 of the decision relied upon
is as hereunder : (SCC pp. 499-500 & 502-503)
“24. In Dwarkadas Marfatia & Sons v. Port of Bombay
[Dwarkadas Marfatia & Sons v. Port of Bombay, (1989) 3
SCC 293] it was held that the Corporation must act in
accordance with certain constitutional conscience and
whether they have so acted must be discernible from the
conduct of such Corporations. Every activity of public
authority must be informed by reasons and guided by the
public interest. All exercises of discretion or power by
public authority must be judged by that standard. In that
case when the building owned by the port trust was
exempted from the Rent Act, on terminating the tenancy for
development when possession was sought to be taken, it
was challenged under Article 226 that the action of the port
trust was arbitrary and no public interest would be served
by terminating the tenancy. In that context, this Court held
that even in contractual relations the Court cannot ignore
that the public authority must have constitutional
conscience so that any interpretation put up must be to
avoid arbitrary action, lest the authority would be permitted
to flourish as imperium in imperio. Whatever be the activity
of the public authority, it must meet the test of Article 14
and judicial review strikes an arbitrary action.
30. The contention of the appellants is that the offending
clause is a valid classification. The salaried group of lives
from the Government, semi-Government or reputed
commercial institutions form a class. With a view to identify
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the health conditions, the policy was applied to that class of
lives. No mandamus would be issued to declare the
classification as unconstitutional when it bears reasonable
nexus to the object and there is intelligible differentia
between the salaried lives and the rest. The High Court,
therefore, was wrong in declaring the offending clause as
arbitrary violating Article 14. It is true that the appellant is
entitled to issue the policy applicable to a particular group
or class of lives entitled to avail contract of insurance with
the appellant but a class or a group does mean that the
classification meets the demand of equality, fairness and
justness. The doctrine of classification is only a subsidiary
rule evolved by the courts to give practical content to the
doctrine of equality, overemphasis on the doctrine of
classification or anxious or sustained attempt to discover
some basis for classification may gradually and
imperceptibly erode the profound potency of the glorious
content of equality enshrined in Article 14 of the
Constitution. The overemphasis on classification would
inevitably result in substitution of the doctrine of
classification to the doctrine of equality and the Preamble
of the Constitution which is an integral part and scheme of
the Constitution. Maneka Gandhi [Maneka Gandhi v. Union
of India, (1978) 1 SCC 248] ratio extricated it from this
moribund and put its elasticity for egalitarian path finder
lest the classification would deny equality to the larger
segments of the society. The classification based on
employment in Government, semi-Government and
reputed commercial firms has the insidious and inevitable
effect of excluding lives in vast rural and urban areas
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engaged in unorganised or self-employed sectors to have
life insurance offending Article 14 of the Constitution and
socio-economic justice.”
34. Shri K.V. Viswanathan, learned Senior Counsel while
contending that the right which had accrued cannot be
taken away and the “things done” or “omitted to be done”
before such supersession is to be kept in view, has relied
on the decision in Universal Imports Agency v. Chief
Controller of Imports & Exports [Universal Imports Agency
v. Chief Controller of Imports & Exports, 1960 SCC OnLine
SC 42 : (1961) 1 SCR 305 : AIR 1961 SC 41] wherein it is
held as hereunder : (AIR pp. 46-47, para 16)“16. What were the “things done” by the petitioners under
the Pondicherry law? The petitioners in the course of their
import trade, having obtained authorisation for the foreign
exchange through their bankers, entered into firm contracts
with foreign dealers on C.I.F. terms. In some cases
irrevocable Letters of Credit were opened and in others
bank drafts were sent towards the contracts. Under the
terms of the contracts the sellers had to ship the goods
from various foreign ports and the buyers were to have
physical delivery of the goods after they had crossed the
customs barrier in India. Pursuant to the terms of the
contracts, the sellers placed the goods on board the
various ships, some before and others after the merger,
and the goods arrived at Pondicherry port after its merger
with India. The prices for the goods were paid in full to the
foreign sellers and the goods were taken delivery of by the
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if the Customs Authorities had imposed any restrictions not
authorised by law, the affected parties could have enforced
the free entry of the goods in a court of law. On the said
facts a short question arises whether para 6 of the Order
protects the petitioners. While learned counsel for the
petitioners contends that “things done” take in not only
things done but also their legal consequences, the learned
counsel for the State contends that, as the goods were not
brought into India before the merger, it was not a thing
done before the merger and, therefore, would be governed
by the enactments specified in the Schedule. It is not
necessary to consider in this case whether the concept of
import not only takes in the factual bringing of goods into
India, but also the entire process of import commencing
from the date of the application for permission to import
and ending with the crossing of the customs barrier in
India. The words “things done” in para 6 must be
reasonably interpreted and, if so interpreted, they can
mean not only things done but also the legal consequences
flowing therefrom. If the interpretation suggested by the
learned counsel for the respondents be accepted, the
saving clause would become unnecessary. If what it saves
is only the executed contracts i.e. the contracts
whereunder the goods have been imported and received
by the buyer before the merger, no further protection is
necessary as ordinarily no question of enforcement of the
contracts under the pre-existing law would arise. The
phraseology used is not an innovation but is copied from
other statutory clauses. Section 6 of the General Clauses
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WP No.8531 of 2024Act (10 of 1897) says that unless a different intention
appears, the repeal of an Act shall not affect anything duly
done or suffered thereunder. So too, the Public Health Act
of 1858 (38 & 39 Vict. c. 55) which repealed the Public
Health Act of 1848 contained a proviso to Section 343 to
the effect that the repeal ‘shall not affect anything duly
done or suffered under the enactment hereby repealed’.
This proviso came under judicial scrutiny in R. v. Justices
of the West Riding of Yorkshire [R. v. Justices of the West
Riding of Yorkshire, (1876) LR 1 QBD 220] . There notice
was given by a local board of health of intention to make a
rate under the Public Health Act, 1848, and amending Acts.
Before the notice had expired these Acts were repealed by
the Public Health Act, 1875, which contained a saving of
“anything duly done” under the repealed enactments, and
gave power to make a similar rate upon giving a similar
notice. The board, in ignorance of the repeal, made a rate
purporting to be made under the repealed Acts. It was
contended that as the rate was made after the repealing
Act, the notice given under the repealed Act was not valid.
The learned Judges held that as the notice was given
before the Act, the making of the rate was also saved by
the words “anything duly done” under the repealed
enactments. This case illustrates the point that it is not
necessary that an impugned thing in itself should have
been done before the Act was repealed, but it would be
enough if it was integrally connected with and was a legal
consequence of a thing done before the said repeal. Under
similar circumstances Lindley, L.J., in Heston & Isleworth
Urban District Council v. Grout [Heston & Isleworth Urban
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the validity of the rate made pursuant to a notice issued
prior to the repeal. Adverting to the saving clause, the
learned Judge tersely states the principle thus at p.
313:”That to my mind preserves that notice and the effect
of it”. On that principle the court of appeal held that the rate
which was the effect of the notice was good.”
35. The learned Senior Counsel, further on the principle of
legitimate expectation, relied on the decision in Navjyoti
Coop. Group Housing Society v. Union of India [Navjyoti
Coop. Group Housing Society v. Union of India, (1992) 4
SCC 477] wherein it is observed as hereunder : (SCC pp.
494-95, paras 15-16)
“15. It also appears to us that in any event the new policy
decision as contained in the impugned memorandum of 20-
1-1990 should not have been implemented without making
such change in the existing criterion for allotment known to
the Group Housing Societies if necessary by way of a
public notice so that they might make proper representation
to the concerned authorities for consideration of their
viewpoints. Even assuming that in the absence of any
explanation of the expression “first come first served” in
Rule 6(vi) of Nazul Rules there was no statutory
requirement to make allotment with reference to date of
registration, it has been rightly held [Kaveri Coop. Group
Housing Society Ltd. v. Union of India, 1991 SCC OnLine
Del 305] , as a matter of fact, by the High Court that prior to
the new guideline contained in the memo of 20-1-1990 the
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principle for allotment had always been on the basis of date
of registration and not the date of approval of the list of
members. In the brochure issued in 1982 by the DDA even
after Gazette notification of Nazul Rules on 26-9-1981 the
policy of allotment on the basis of seniority in registration
was clearly indicated. In the aforesaid facts, the Group
Housing Societies were entitled to “legitimate expectation”
of following consistent past practice in the matter of
allotment, even though they may not have any legal right in
private law to receive such treatment. The existence of
“legitimate expectation” may have a number of different
consequences and one of such consequences is that the
authority ought not to act to defeat the “legitimate
expectation” without some overriding reason of public
policy to justify its doing so. In a case of “legitimate
expectation” if the authority proposes to defeat a person’s
“legitimate expectation” it should afford him an opportunity
to make representations in the matter. In this connection
reference may be made to the discussions on “legitimate
expectation” at p. 151 of Volume 1(1) of Halsbury’s Laws of
England, 4th Edn. (re-issue). We may also refer to a
decision of the House of Lords in Council of Civil Service
Unions v. Minister for the Civil Service [Council of Civil
Service Unions v. Minister for the Civil Service, 1985 AC
374 : (1984) 3 WLR 1174 (HL)] . It has been held in the
said decision that an aggrieved person was entitled to
judicial review if he could show that a decision of the public
authority affected him of some benefit or advantage which
in the past he had been permitted to enjoy and which he
legitimately expected to be permitted to continue to enjoy
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opportunity to comment on such reasons.
16. It may be indicated here that the doctrine of “legitimate
expectation” imposes in essence a duty on public authority
to act fairly by taking into consideration all relevant factors
relating to such “legitimate expectation”. Within the
conspectus of fair dealing in case of “legitimate
expectation”, the reasonable opportunities to make
representation by the parties likely to be affected by any
change of consistent past policy, come in. We, have not
been shown any compelling reasons taken into
consideration by the Central Government to make a
departure from the existing policy of allotment with
reference to seniority in registration by introducing a new
guideline. On the contrary, Mr Jaitley the learned counsel
has submitted that the DDA and/or Central Government do
not intend to challenge the decision [Kaveri Coop. Group
Housing Society Ltd. v. Union of India, 1991 SCC OnLine
Del 305] of the High Court and the impugned memorandum
of 20-1-1990 has since been withdrawn. We therefore feel
that in the facts of the case it was only desirable that before
introducing or implementing any change in the guideline for
allotment, an opportunity to make representations against
the proposed change in the guideline should have been
given to the registered Group Housing Societies, if
necessary, by way of a public notice.”
36. On behalf of the petitioners the decision to explain the
doctrine of ultra vires was also relied in J.K. Industries Ltd.
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v. Union of India [J.K. Industries Ltd. v. Union of India,
(2007) 13 SCC 673] wherein it is held as hereunder : (SCC
pp. 765-66, paras 127-28)
“127. At the outset, we may state that on account of
globalisation and socio-economic problems (including
income disparities in our economy) the power of delegation
has become a constituent element of legislative power as a
whole. However, as held in Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India [Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1
SCC 641] , SCC at p. 689, subordinate legislation does not
carry the same degree of immunity which is enjoyed by a
statute passed by a competent legislature. Subordinate
legislation may be questioned on any of the grounds on
which plenary legislation is questioned. In addition, it may
also be questioned on the ground that it does not conform
to the statute under which it is made. It may further be
questioned on the ground that it is inconsistent with the
provisions of the Act or that it is contrary to some other
statute applicable on the same subject-matter. Therefore, it
has to yield to plenary legislation. It can also be questioned
on the ground that it is manifestly arbitrary and unjust.
That, any inquiry into its vires must be confined to the
grounds on which plenary legislation may be questioned, to
the grounds that it is contrary to the statute under which it
is made, to the grounds that it is contrary to other statutory
provisions or on the ground that it is so patently arbitrary
that it cannot be said to be in conformity with the statute. It
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can also be challenged on the ground that it violates Article
14 of the Constitution.
128. Subordinate legislation cannot be questioned on the
ground of violation of principles of natural justice on which
administrative action may be questioned. A distinction
must, however, be made between delegation of a
legislative function in which case the question of
reasonableness cannot be gone into and the investment by
the statute to exercise a particular discretionary power. In
the latter case, the question may be considered on all
grounds on which administrative action may be questioned,
such as, non-application of mind, taking irrelevant matters
into consideration, failure to take relevant matters into
consideration, etc. A subordinate legislation may be struck
down as arbitrary or contrary to statute if it fails to take into
account vital facts which expressly or by necessary
implication are required to be taken into account by the
statute or the Constitution. This can be done on the ground
that the subordinate legislation does not conform to the
statutory or constitutional requirements or that it offends
Article 14 or Article 19 of the Constitution. However, it may
be noted that, a notification issued under a section of the
statute which requires it to be laid before Parliament does
not make any substantial difference as regards the
jurisdiction of the court to pronounce on its validity.”
37. Ms Aishwarya Bhati, learned Additional Solicitor
General, in seeking to distinguish the above referred
decisions contended that the cases referred to by the
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learned Senior Counsel for the petitioner are all in the
context of the issues which had arisen in matters relating to
citizens of India against the State/Authorities or when the
dispute arose for consideration inter se between the
citizens of India. In that view, it is contended that the
petitioner cannot claim protection under Article 14, 19 or 21
of the Constitution of India. Even for claiming any right
under Article 14, the same will emerge from Article 19 of
the Constitution and as such protection cannot be
accorded to foreigners.
38. In addition, the learned Additional Solicitor General, to
emphasise that a policy decision in public interest cannot
be interfered, referred to the decision in State of Punjab v.
Ram Lubhaya Bagga [State of Punjab v. Ram Lubhaya
Bagga, (1998) 4 SCC 117 : 1998 SCC (L&S) 1021] : (SCC
p. 129, para 25)
“25. Now we revert to the last submission, whether the new
State policy is justified in not reimbursing an employee, his
full medical expenses incurred on such treatment, if
incurred in any hospital in India not being a government
hospital in Punjab. Question is whether the new policy
which is restricted by the financial constraints of the State
to the rates in AIIMS would be in violation of Article 21 of the
Constitution of India. So far as questioning the validity of
governmental policy is concerned in our view it is not
normally within the domain of any court, to weigh the pros
and cons of the policy or to scrutinise it and test the degree
of its beneficial or equitable disposition for the purpose of
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varying, modifying or annulling it, based on howsoever
sound and good reasoning, except where it is arbitrary or
violative of any constitutional, statutory or any other
provision of law. When Government forms its policy, it is
based on a number of circumstances on facts, law
including constraints based on its resources. It is also
based on expert opinion. It would be dangerous if court is
asked to test the utility, beneficial effect of the policy or its
appraisal based on facts set out on affidavits. The court
would dissuade itself from entering into this realm which
belongs to the executive. It is within this matrix that it is to
be seen whether the new policy violates Article 21 when it
restricts reimbursement on account of its financial
constraints.”
39. On the contention relating to the reasonable
classification test and a foreigner not having right, the
following decisions are relied upon by the learned
Additional Solicitor General. They are:
39.1.Izhar Ahmad Khan v. Union of India [Izhar Ahmad
Khan v. Union of India, 1962 SCC OnLine SC 1 : AIR 1962
SC 1052] : (AIR pp. 1066-67, para 38)“38. The next point to consider is about the validity of
Section 9(2) itself. It is argued that this rule is ultra vires
because it affects the status of citizenship conferred on the
petitioners and recognised by the relevant articles of the
Constitution, and it is urged that by depriving the petitioners
of the status of citizenship, their fundamental rights under
Article 19 generally and particularly the right guaranteed by
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Article 19(1)(e) are affected. It is not easy to appreciate this
argument. As we have already observed, the scheme of
the relevant articles of Part II which deals with citizenship
clearly suggests that the status of citizenship can be
adversely affected by a statute made by the Parliament in
exercise of its legislative powers. It may prima facie sound
somewhat surprising, but it is nevertheless true, that
though the citizens of India are guaranteed the
fundamental rights specified in Article 19 of the
Constitution, the status of citizenship on which the
existence or continuance of the said rights rests is itself not
one of the fundamental rights guaranteed to anyone. If a
law is properly passed by the Parliament affecting the
status of citizenship of any citizens in the country, it can be
no challenge to the validity of the said law that it affects the
fundamental rights of those whose citizenship is thereby
terminated. Article 19 proceeds on the assumption that the
person who claims the rights guaranteed by it is a citizen of
India. If the basic status of citizenship is validly terminated
by a Parliamentary statute, the person whose citizenship is
terminated has no right to claim the fundamental rights
under Article 19. Therefore, in our opinion, the challenge to
Section 9(2) on the ground that it enables the rule-making
authority to make a rule to deprive the citizenship rights of
the petitioners cannot be sustained.”
39.2.Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh
[Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
1964 SCC OnLine SC 42 : AIR 1964 SC 1140] : (AIR p.
1154, para 34)
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34. There is one more point which must be mentioned
before we part with this appeal. Mr Choudhary attempted to
argue that if mens rea was not regarded as an essential
element of Section 52-A, the said section would be ultra
vires Articles 14, 19 and 31(1) and as such,
unconstitutional and invalid. We do not propose to consider
the merits of this argument, because the appellant is not
only a company, but also a foreign company, and as such,
is not entitled to claim the benefits of Article 19. It is only
citizens of India who have been guaranteed the right to
freedom enshrined in the said article. If that is so, the plea
under Article 31(1) as well as under Article 14 cannot be
sustained for the simple reason that in supporting the said
two pleas, inevitably the appellant has for fall back upon
the fundamental right guaranteed by Article 19(1)(f). The
whole argument is that the appellant is deprived of its
property by operation of the relevant provisions of the Act
and these provisions are invalid. All that Article 31(1)
provides is that no person shall be deprived of his property
save by authority of law. As soon as this plea is raised, it is
met by the obvious answer that the appellant has been
deprived of its property by authority of the provisions of the
Act and that would be the end of the plea under Article
31(1) unless the appellant is able to take the further step of
challenging the validity of the Act, and that necessarily
imports Article 19(1)(f). Similarly, when a plea is raised
under Article 14, we face the same position. It may be that
if Section 52-A contravenes Article 19(1)(f), a citizen of
India may contend that his vessel cannot be confiscated
even if it has contravened Section 52-A, and in that sense,
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there would be inequality between the citizen and the
foreigner, but that inequality is the necessary consequence
of the basic fact that Article 19 is confined to citizens of
India, and so, the plea that Article 14 is contravened also
must take in Article 19 if it has to succeed. The plain truth
is that certain rights guaranteed to the citizens of India
under Article 19 are not available to foreigners and pleas
which may successfully be raised by the citizens on the
strength of the said rights guaranteed under Article 19
would, therefore, not be available to foreigners. That being
so, we see no substance in the argument that if Section 52-
A is construed against the appellant, it would be invalid,
and so, the appellant would be able to resist the
confiscation of its vessel under Article 31(1). We ought to
make it clear that we are expressing no opinion on the
validity of Section 52-A under Article 19(1)(f). If the said
question were to arise for our decision in any case, we
would have to consider whether the provisions of Section
52-A are not justified by Article 19(5). That is a matter
which is foreign to the enquiry in the present appeal.
39.3.State of Arunachal Pradesh v. Khudiram Chakma
[State of Arunachal Pradesh v. Khudiram Chakma, 1994
Supp (1) SCC 615] : (SCC p. 631, para 75)
“75. It is true that fundamental right is available to a
foreigner as held in Louis De Raedt v. Union of India [Louis
De Raedt v. Union of India, (1991) 3 SCC 554 : 1991 SCC
(Cri) 886] : (SCC p. 562, para 13)
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’13. The next point taken on behalf of the petitioners, that
the foreigners also enjoy some fundamental rights under
the Constitution of this country, is also of not much help to
them. The fundamental right of the foreigner is confined to
Article 21 for life and liberty and does not include the right
to reside and settle in this country, as mentioned in Article
19(1)(e), which is applicable only to the citizens of this
country.’
As such Articles 19(1)(d) and (e) are unavailable to
foreigners because those rights are conferred only on the
citizens. Certainly, the machinery of Article 14 cannot be
invoked to obtain that fundamental right. Rights under
Articles 19(1)(d) and (e) are expressly withheld to
foreigners.”
39.4.Hans Muller of Nurenburg v. Supt., Presidency Jail
[Hans Muller of Nurenburg v. Supt., Presidency Jail, 1955
SCC OnLine SC 35 : AIR 1955 SC 367] : (AIR pp. 371-72
& 374-76, paras 20, 36 & 43)
“20. We do not agree and will first examine the position
where an order of expulsion is made before any steps to
enforce it are taken. The right to expel is conferred by
Section 3(2)(c) of the Foreigners Act, 1946 on the Central
Government and the right to enforce an order of expulsion
and also to prevent any breach of it, and the right to use
such force as may be reasonably necessary “for the
effective exercise of such power” is conferred by Section
11(1), also on the Central Government. There is, therefore,
implicit in the right of expulsion a number of ancillary rights,
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among them, the right to prevent any breach of the order
and the right to use force and to take effective measures to
carry out those purposes. Now the most effective method
of preventing a breach of the order and ensuring that it is
duly obeyed is by arresting and detaining the person
ordered to be expelled until proper arrangements for the
expulsion can be made. Therefore, the right to make
arrangements for an expulsion includes the right to make
arrangements for preventing any evasion or breach of the
order, and the Preventive Detention Act confers the power
to use the means of preventive detention as one of the
methods of achieving this end. How far it is necessary to
take this step in a given case is a matter that must be left to
the discretion of the Government concerned, but, in any
event, when criminal charges for offences said to have
been committed in this country and abroad are levelled
against a person, an apprehension that he is likely to
disappear and evade an order of expulsion cannot be
called either unfounded or unreasonable. Detention in such
circumstances is rightly termed preventive and falls within
the ambit of the Preventive Detention Act and is reasonably
related to the purpose of the Act.
***
36. The Foreigners Act confers the power to expel
foreigners from India. It vests the Central Government with
absolute and unfettered discretion and, as there is no
provision fettering this discretion in the Constitution, an
unrestricted right to expel remains.
***
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43. Our conclusion is that the Foreigners Act is not
governed by the provisions of the Extradition Act. The two
are distinct and neither impinges on the other. Even if there
is a requisition and a good case for extradition,
Government is not bound to accede to the request. It is
given an unfettered right to refuse. Section 3(1) of the
Extradition Act says–“the Central Government may, if it
thinks fit”.
Therefore, if it chooses not to comply with the request, the
person against whom the request is made cannot insist
that it should. The right is not his; and the fact that a
request has been made does not fetter the discretion of
Government to choose the less cumbrous procedure of the
Foreigners Act when a foreigner is concerned, provided
always, that in that event the person concerned leaves
India a free man. If no choice had been left to the
Government, the position would have been different but as
Government is given the right to choose, no question of
want of good faith can arise merely because it exercises
the right of choice which the law confers. This line of attack
on the good faith of Government falls to the ground.”
40. In order to contend that the classification made is valid,
the learned Additional Solicitor General has referred to the
decision in:
40.1.State of W.B. v. Anwar Ali Sarkar [State of W.B. v.
Anwar Ali Sarkar, (1952) 1 SCC 1 : AIR 1952 SC 75 : 1952
SCR 284] as hereunder : (SCC pp. 54-55, paras 63-64)
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“63. In order to appreciate this contention, it is necessary to
state shortly the scope of Article 14 of the Constitution. It is
designed to prevent any person or class of persons from
being singled out as a special subject for discriminatory
and hostile legislation. Democracy implies respect for the
elementary rights of man, however suspect or unworthy.
Equality of right is a principle of republicanism and Article
14 enunciates this equality principle in the administration of
justice. In its application to legal proceedings the Article
assures to everyone the same rules of evidence and
modes of procedure. In other words, the same rule must
exist for all in similar circumstances. This principle,
however, does not mean that every law must have
universal application for all persons who are not by nature,
attainment or circumstance, in the same position.
64. By the process of classification the State has the power
of determining who should be regarded as a class for
purposes of legislation and in relation to a law enacted on a
particular subject. This power, no doubt, in some degree is
likely to produce some inequality; but if a law deals with the
liberties of a number of well-defined classes, it is not open
to the charge of denial of equal protection on the ground
that it has no application to other persons. The
classification permissible, however, must be based on
some real and substantial distinction bearing a just and
reasonable relation to the objects sought to be attained and
cannot be made arbitrarily and without any substantial
basis. Classification thus means segregation in classes
which have a systematic relation, usually found in common
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properties and characteristics. It postulates a rational basis
and does not mean herding together of certain persons and
classes arbitrarily. Thus the legislature may fix the age at
which persons shall be deemed competent to contract
between themselves, but no one will claim that competency
to contract can be made to depend upon the stature or
colour of the hair. ‘Such a classification for such a purpose
would be arbitrary and a piece of legislative despotism’
[Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 1897 SCC
OnLine US SC 20 : 41 L Ed 666 : 165 US 150 (1897)] .”
40.2.Budhan Choudhry v. State of Bihar [Budhan Choudhry
v. State of Bihar, 1954 SCC OnLine SC 19 : (1955) 1 SCR
1045 : AIR 1955 SC 191] : (AIR p. 193, para 5)
“5. The provisions of Article 14 of the Constitution have
come up for discussion before this Court in a number of
cases, namely, Charanjit Lal Chowdhury v. Union of India
[Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833
: 1950 SCR 869] , State of Bombay v. F.N. Balsara [State
of Bombay v. F.N. Balsara, 1951 SCC 860 : 1951 SCR
682] , State of W.B. v. Anwar Ali Sarkar [State of W.B. v.
Anwar Ali Sarkar, (1952) 1 SCC 1 : AIR 1952 SC 75 : 1952
SCR 284] , Kathi Raning Rawat v. State of Saurashtra
[Kathi Raning Rawat v. State of Saurashtra, (1952) 1 SCC
215 : 1952 SCR 435] , Lachmandas Kewalram Ahuja v.
State of Bombay [Lachmandas Kewalram Ahuja v. State of
Bombay, (1952) 1 SCC 726 : 1952 SCR 710] and Qasim
Razvi v. State of Hyderabad [Qasim Razvi v. State of
Hyderabad, (1953) 1 SCC 42 : AIR 1953 SC 156 : 1953
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SCR 589] and Habeeb Mohamed v. State of Hyderabad
[Habeeb Mohamed v. State of Hyderabad, (1953) 1 SCC
501 : 1953 SCR 661] . It is, therefore, not necessary to
enter upon any lengthy discussion as to the meaning,
scope and effect of the article in question. It is now well
established that while Article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes
of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled,
namely, (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group
and (ii) that that differentia must have a rational relation to
the object sought to be achieved by the statute in question.
The classification may be founded on different bases;
namely, geographical, or according to objects or
occupations or the like. What is necessary is that there
must be a nexus between the basis of classification and
the object of the Act under consideration. It is also well
established by the decisions of this Court that Article 14
condemns discrimination not only by a substantive law but
also by a law of procedure. The contention now put forward
as to the invalidity of the trial of the appellants has,
therefore to be tested in the light of the principles so laid
down in the decisions of this Court.”
40.3.State of Kerala v. N.M. Thomas [State of Kerala v.
N.M. Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227] :
(SCC p. 334, para 31)
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WP No.8531 of 2024“31. The rule of parity is the equal treatment of equals in
equal circumstances. The rule of differentiation is enacting
laws differentiating between different persons or things in
different circumstances. The circumstances which govern
one set of persons or objects may not necessarily be the
same as those governing another set of persons or objects
so that the question of unequal treatment does not really
arise between persons governed by different conditions
and different sets of circumstances. The principle of
equality does not mean that every law must have universal
application for all persons who are not by nature,
attainment or circumstances in the same position and the
varying needs of different classes of persons require
special treatment. The legislature understands and
appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that
its discriminations are based upon adequate grounds. The
rule of classification is not a natural and logical corollary of
the rule of equality, but the rule of differentiation is inherent
in the concept of equality. Equality means parity of
treatment under parity of conditions. Equality does not
connote absolute equality. A classification in order to be
constitutional must rest upon distinctions that are
substantial and not merely illusory. The test is whether it
has a reasonable basis free from artificiality and
arbitrariness embracing all and omitting none naturally
falling into that category.”
42. Having noted the above, at the outset, insofar as the
decision relied on by the learned Senior Counsel for the
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petitioner in Navtej Singh Johar [Navtej Singh Johar v.
Union of India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1] ,
though the Doctrine of Progressive Realisation of Rights is
referred and has been stated that there must not be any
regression of rights and in a progressive and an ever-
improving society there is no place for retreat, the society
has to march ahead that the State should not take
measures or steps that deliberately lead to retrogression
on the enjoyment of rights either under the constitution or
otherwise, we are of the opinion that the said observation
would depend on the nature of the rights regarding which a
consideration is made in appropriate cases.
41. The learned Additional Solicitor General has also
referred to the decision in K. Thimmappa v. SBI [K.
Thimmappa v. SBI, (2001) 2 SCC 259 : 2001 SCC (L&S)
374] to contend that when a law is challenged to be
discriminatory essentially on the ground that it denies equal
treatment or protection, the question for determination by
the Court is not whether it has resulted in inequality but
whether there is some differentia which bears a just and
reasonable relation to the object of legislation. Mere
differentiation does not per se amount to discrimination
within the inhibition of the equal protection clause.
43. In the instant facts, the said observation cannot be of
any assistance to the petitioners since the right though had
been conferred earlier, such rights, insofar as the
petitioners are concerned only a statutory right as they are
admittedly not citizens of this country. Though certain rights
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under the statute were given, the state has a duty to
balance the interests of its citizens and the non-citizens
when a change is required to be made. However as to
whether such consideration has been made in a just and
proper manner with reference to all aspects is another
aspect which we will advert to in the course of this
judgment, but to contend that it amounts to retrogression
may not arise in the present context.
44. Insofar as the remaining decisions relied on by the
petitioners as also the learned Additional Solicitor General
are concerned, a cumulative perusal of the same would
indicate that though this Court has asserted with regard to
the legitimate expectation, right not to be discriminated
keeping in view Article 14 of the Constitution, etc. they are
all essentially in the context while dealing with the rights of
a citizen against the State or in a situation where a dispute
was between a citizen against another citizen of this
country and in that regard when the constitutional
principles were invoked. Further, the decisions relied on by
the learned Additional Solicitor General would indicate that
this Court while considering the right claimed by a foreigner
or who is not a citizen of this country has dealt with the
matter differently and declined to interfere and grant any
relief. If in that light, the matter is looked into, when there is
no dispute to the fact that the petitioners answer the
definition of “foreigners” as defined under the Foreigners
Act, the said decisions relied upon by the learned Senior
Counsel for the petitioner would not apply on all fours. But
keeping in view the nature of right claimed by the
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petitioners as OCI cardholders which is a status accorded
despite being foreigners and the background circumstance
which led to the situation the spirit of the principles laid will
have to be borne in mind while making further
consideration since the principles laid down therein
disapproving non-application of mind, arbitrariness, etc. will
hold good in the present circumstance as well. In the
instant facts the statutory as OCI cardholder subsists and it
is in that light the validity of notification is to be tested
which certainly can be raised by the petitioner and be
addressed by this Court.
45. Therefore, with the said understanding on the aspect of
the applicability of the said decisions concluded as above,
in the facts and circumstances arising in the instant case
and the issue which is to be taken note and answered by
us, the matter requires further consideration. No doubt, as
pointed out by the learned Additional Solicitor General,
Section 2(a) of the Foreigners Act, 1946 defines a
“foreigner” to mean a person who is not a citizen of India. If
the matter had rested at that, there was no difficulty. In the
instant case, there is a different dimension which arises for
consideration. The circumstance in which the petitioners
have come to be classified as “foreigners” and the right
which was conferred on them is to be kept in view.
46. To put the matter in perspective and understand the
concept based on which the rights are being claimed by the
petitioners, it is necessary to advert to the fact situation and
the law governing them despite being classified as
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“foreigner”. Most of the petitioners are all persons who are
either of full age or are yet to reach the full age but are all
children, whose both parents or one of them are Indian
citizens. In the changing world and in an era where the
concept of multinationals providing employment to Indian
citizens had increased, the incident of birth of the children
taking place in a country outside India had also increased.
In that circumstance, successive Governments had to
bestow their attention to this aspect of the matter to provide
better rights to such persons, who, though in the technical
sense where “foreigners”, not being citizens of this country,
yet had a “connect” with this country. These were cases
where though the umbilical cord with the biological mother
had snapped in a foreign country, the umbilical connections
with the country continue to remain intact as the entire
family including the grandparents would be in India and the
parents were Indian citizens in most cases. In that view,
having considered all these aspects of the matter, despite
such persons not having the benefit of citizenship as
provided under Part II of the Constitution through Articles 5
to 8 thereof and there being no scope for dual citizenship,
certain rights were created under the 1955 Act which had
come into force based on the provision in Article 11 of the
Constitution of India.
47. In that regard, in a concept where the “dual citizenship”
was not recognised, such persons as like that of the
petitioners were considered as Overseas Citizens of India
cardholders as defined under Section 2(ee) of the 1955
Act. The 1955 Act through Amendment Act 6 of 2004
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WP No.8531 of 2024brought certain rights and through substitution of Sections
7-A to 7-D the manner of registration of Overseas Citizen
of India cardholder; renunciation of citizenship and
cancellation of registration were provided for. In the cases,
on hand, the fact that all the petitioners are registered as
Overseas Citizens of India cardholders is not in dispute.
The right to which they are making a claim is conferred
under Section 7-B(1) of the 1955 Act which has been
extracted and noted above. The right to education which
was conferred under the Notification dated 11-4-2005, in
parity with the non-resident Indians is due to the fact that
the non-resident Indians which is a separate class, had
such right similar to that of the Indian citizens in matters
relating to education. It is based on such right being
conferred as far back as in the year 2005, the OCI
cardholders were taking part in the process of selections
conducted for undertaking educational courses in India.
Such benefit was extended to appear for the All India pre-
medical test or such other tests to make them eligible for
admission in pursuance of the provisions contained in the
relevant acts, through the Notification dated 5-1-2009. The
said benefit is being enjoyed by all the OCI cardholders in
the same manner as the non-resident Indians were
enjoying along with the Indian citizens. In that
circumstance, most of such OCI cardholders have been
pursuing their entire educational career in India.
48. In the said background it is necessary to note that as
per the information furnished relating to the status of the
petitioners in WP (C) No. 891 of 2021 which is taken as an
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instance for demonstrating the situation of their affinity with
India and the number of years they have been in India. The
details are as provided in Annexure P-2 which is as
hereunder:
P. Name Date Place of OCI Nationality Studying Years Presently in Current city
No. of Birth cardholder of Parents in India living which of residence
Birth since in standard and State
which India last
year standard
passed
1. Anushka 31- USA, Yes Indian 2006 15 12th Pune,
Rengunthwar 12- California (both) Maharashtra
2003
2. Ria Sameer 15- New Yes Indian 2008 13 12th Pune,
Munje 1- Jersey, (both) Maharashtra
2003 USA
3. Ved Milind 21- Michigan, Yes Indian 2006 15 12th Pune,
Mulay 2- USA (both) Maharashtra
2004
4. Samriddhi 27- USA, Yes Indian 2004 17 12th Pune,
Narayan 10- Illinois (both) Maharashtra
Patil 2002
5. Joana 26- USA, Yes Indian 2008 13 12th Pune,
Banerjee 8- Lowa (both) Maharashtra
2003
6. Amulya 4-3- California, Yes (PlO- Indian 2009 12 12th Hyderabad,
Kalidindi 2003 USA deemed (Mother) Telangana
OCI
7. Yash Manish 15- California, Yes USA 2007 14 12th Pune,
Mehta 6- USA (both) Maharashtra
2003
8. Viswa 3-2- USA, New Yes USA 2008 13 12th Bengaluru,
Kantamneni 2004 Jersey (both) Karnataka
9. Dhanush 5-9- USA, Yes USA 2012 9 12th Chennai,
Gajula 2003 North (both) Tamil Nadu
Carolina
10. Netra Ashish 17- Pune, Yes UK (both) 2011 10 12th Pune,
Athawale 12- India Maharashtra
2002 [nationality
changed
to UK in
2010]
11. Shreya Repala 11-3- USA, New Yes USA (both) 2010 11 12th Hyderabad,
2003 Hampshire Telangana
12. Richa Shirole 26-12- Canada, Ontario Yes Canada 2010 11 12th Pune,
2002 (both) Maharashtra
13. Harini 31-3- Tamil Nadu, India Yes UK (both) 2014 7 12th Chennai,
Padmanaban 2003 [nationality changed Tamil Nadu
to UK in 2009]
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14. Prithvi 13-6- UK, Scotland Yes UK (Father) 2008 13 12th Coimbatore,
Thennavan 2003 India Tamil Nadu
(Mother)
15. Sricharan 19-7- York, England Yes UK (Father) 2009 12 12th Chennai,
Kosygan 2003 Indian Tamil Nadu
(Mother)
16. Anushree 3-1- USA, Texas Yes USA (both) 2015 6 12th Coimbatore,
Rammoorthi 2003 Tamil Nadu
17. Neya Kavya 4-6- USA, Illinois Yes India 2009 12 12th Chennai,
Chander 2004 (Father) Tamil Nadu
USA
(Mother)
18. Harini 23-9- New Jersey, USA Yes USA (both) 2013 8 12th Chennai,
Manikumar 2003 Tamil Nadu
19. Amita Bacchu 10-4- USA, California Yes Indian 2008 13 12th Bengaluru,
2002 (both) Karnataka
20. Srisneha Mettu 8-3- India, Tamil Nadu Yes UK (both) 2012 9 12th Chennai,
2004 [nationality changed Tamil Nadu
to UK in 2011]
21. Aashish Varma 10-12- USA, Yes USA (father) 2013 8 12th Hyderabad,
Kalidindi 2002 Texas Mother Telangana
(Indian)
22. Chetana 2-4- USA, Yes USA (both) 2012 9 12th Hyderabad,
Thotakura 2003 New Telangana
Jersey
23. Radha Garikipati 18-4- USA, Yes USA (both) 2009 12 12th Chennai, Tamil
2003 New Nadu
Jersey
24. Sejal Marri 13-9- USA, Yes Indian (both) 2007 17 12th Hyderabad
2003 UTAH Telangana
25. Neha Neetha 29-8- USA, Yes USA (both) 2012 9 12th Chennai, Tamil
Gonuguntla 2003 Texas Nadu
26. Bhuvan Reddy 27-10- USA, Yes USA (both) 2011 10 12th Hyderabad
Jonnala 20021 Illinois Telangana
27. Nandhini 22-10- USA, Yes USA (both) 2009 11 12th Chennai, Tamil
Saravanan 2003 Michigan Nadu
28. Dhruv Dhuria 31-7- US, MA Yes Indian (both) 2009 11 12th Delhi
2003
49. The above-extracted details would indicate that in all
the cases the petitioners have studied for more than six
years in India and in most of the cases, almost the entire
educational career up to the stage of the qualifying
examination for the pre-medical test has been undertaken
in India. Apart from the specific cases noted herein, there
are also petitioners/persons who had become citizens of a
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foreign country for compelling reasons, but hold benefit of
OCI card. This would demonstrate that though in terms of
law, the petitioners were “foreigners” due to the incident of
birth in a foreign country or such other compelling
circumstances, they continue to remain in India and to
pursue their education and had fully justified the mid-path
benefit given to them based on the OCI card. The manner
in which they have conducted themselves by being
students in India would indicate that in addition to having
the umbilical connection with the country, they being aware
of the right conferred through the Notifications dated 11-4-
2005 and 5-1-2009 had positioned themselves to further
their professional career by making a choice of their
profession and undertaking the preparation for the same.
This was based on what was held out to that class of
Overseas citizens. In fact, their entire educational career
has been of the same standard, with the same
“advantages” and “disadvantages” as has been the case
with the students who are Indian citizens. In such situation,
though in the strict term of the word “legitimate
expectation”, it may not fall, a statutory right conferred had
sown the seed of hope recognising the affiliation to this
country, though they were not citizens in the strict sense.
50. Hence keeping this situation in the backdrop, the
manner in which the impugned notification would affect the
petitioners and the similarly placed citizens will have to be
taken note of to examine whether the withdrawal of the
conferred right will be justified. It is no doubt true as
contended by the learned Additional Solicitor General, the
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right available to the OCI cardholders is only the statutory
right based on the right that is conferred through a
notification in terms of Section 7-B(1) of the 1955 Act. Sub-
section (2) thereto specifically indicates the right that
cannot be conferred even under sub-section (1) through a
notification. Though a notification issued under the sub-
delegated power can be withdrawn, modified or altered, the
effect of the impugned Notification dated 4-3-2021 needs to
be noted to consider as to whether the same is wholly
justified or as to whether any portion of it falls foul of the
object for which it is made and the manner in which it has
been modified.
52. However, what is necessary to be taken note is that the
right which was bestowed through the Notifications dated
11-4-2005 and 5-1-2009 insofar as the educational parity,
including in the matter of appearing for the All India pre-
medical test or such other tests to make them eligible for
admission has been completely altered. Though the
notification ex facie may not specify retrospective
application, the effect of superseding the earlier
notifications and the proviso introduced to Clause 4(ii)
would make the impugned Notification dated 4-3-2021
“retroactive” insofar as taking away the assured right based
on which the petitioners and similarly placed persons have
altered their position and have adjusted the life’s trajectory
with the hope of furthering their career in professional
education.
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53. The learned Senior Counsel for the petitioners would in
that context contend that since sub-section (2) to Section
7-B of the 1955 Act does not exclude the right under Article
14 of the Constitution, it is available to be invoked and such
discrimination contemplated in the notification to exclude
the OCI cardholders should be struck down. Article 14 of
the Constitution can be invoked and contend discrimination
only when persons similarly placed are treated differently
and in that view the OCI cardholders being a class by
themselves cannot claim parity with the Indian citizens,
except for making an attempt to save the limited statutory
right bestowed. To that extent certainly the fairness in the
procedure adopted has a nexus with the object for which
change is made and the application of mind by Respondent
1, before issuing the impugned notification requires
examination.
54. As noted, the right of the OCI cardholders is a midway
right in the absence of dual citizenship. When a statutory
right was conferred and such right is being withdrawn
through a notification, the process for withdrawal is
required to demonstrate that the action taken is reasonable
and has nexus to the purpose. It should not be arbitrary,
without basis and exercise of such power cannot be
exercised unmindful of consequences merely because it is
a sovereign power. To examine this aspect, in addition to
the contentions urged by the learned Additional Solicitor
General we have also taken note of the objection
statement filed with the writ petition.
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55. Though detailed contentions are urged with regard to
the status of a citizen and the sovereign power of the State,
as already noted, in these petitions the sovereign power
has not been questioned but the manner in which it is
exercised in the present circumstance is objected. The
contention of the learned Additional Solicitor General is that
the intention from the beginning was to grant parity to OCI
cardholders only with NRIs. On that aspect as already
noted above we have seen the nature of the benefit that
had been extended to the petitioners and the similarly
placed petitioners under the notifications of the years 2005,
2007 and 2009. The further contention insofar as equating
the OCI cardholders to compete only for the seats which
are reserved for NRIs and to exclude the OCI cardholders
for admission against any seat reserved exclusively for the
Indian citizens, across the board, even to the persons who
were bestowed the right earlier, it is stated that the
rationale is to protect the rights of the Indian citizens in
such matters where State may give preference to its
citizens vis-à-vis foreigners holding OCI cards. It is further
averred in the counter that number of seats available for
medical and engineering courses in India are very limited
and that it does not fully cater to the requirement of even
the Indian citizens. It is therefore contended that the right to
admission to such seats should primarily be available to
the Indian citizens instead of foreigners, including OCI
cardholders.
56. Except for the bare statement in the objection
statement, there is no material with regard to the actual
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exercise undertaken to arrive at a conclusion that the
participation of OCI cardholders in the selection process
has denied the opportunity of professional education to the
Indian citizens. There are no details made available about
the consideration made as to, over the years how many
OCI cardholders have succeeded in getting a seat after
competing in the selection process by which there was
denial of seats to Indian citizens though they were similar
merit-wise. Per contra, the learned Senior Counsel for the
petitioners has placed reliance on the statement made by
the Hon’ble Minister in reply to the question raised in the
Rajya Sabha as recent as on 13-12-2022, and an extract to
indicate the details is produced along with IA No. 4763 of
2023 for additional documents in WP (C) No. 246 of 2022.
57. The details shown are as follows:
“STATEMENT REFERRED TO IN REPLY TO RAJYA SABHA
STARRED QUESTION NO. 64* FOR 13-12-2022
(a) to (c) As per information received from National Testing
Agency (NTA), the details of number of students who
appeared for the NEET-UG examination in the last three
years are as under:
Year 2022 2021 2020
Number of 18,72,343 16,14,777 15,97,435
students
registered
Number of 17,64,571 15,44,273 13,66,945
students
appeared
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The details of number of Undergraduate (UG)/Postgraduate
(PG) seats available during the admission process of last three
years are as under:
Year UG PG
2020-2021 83275 55495
2021-2022 92065 60202
2022-2023 96077 64059
According to National Medical Commission (NMC), the number
of MBBS & PG seats vacant from 2018-2019 to 2021-2022, year
wise is as under:
SI. Academic Total number of
N Year seats left vacant
o. for MBBS in UG
Counselling
1. 2021-2022 197
2. 2019-2020 273
3. 2018-2019 274
SI. No. Academic Year Total number of
PG seats left
vacant in
Counselling
(Year wise)
1. 2021-2022 3744
2. 2020-2021 1425
3. 2019-2020 4614"
58. Hence, it is sought to be pointed out on behalf of the
petitioners that the explanation put forth does not indicate
the true state of affairs inasmuch as, seats have still
remained vacant in the previous years. It is no doubt true
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that as contended by the learned Additional Solicitor
General, the vacancies will remain due to several factors
such as reservation of seats, other permutations and
combinations as also the preferred and non-preferred
colleges. Be that as it may, the dire need to take away the
bestowed right by applying the impugned notification even
to young students who technically though are not citizens
of this country but were provided certain rights in such
manner would not be justified as it does not demonstrate
nexus to the object sought to be achieved. Policy decision
for the future, certainly is within the domain of Respondent
1 based on the sovereign powers of the State. Even on that
aspect all that has been stated is that the decision to issue
the notification was taken in the meeting of Secretaries
held on 19-7-2018 without indicating the nature of
deliberations.
59. Therefore, in that perspective, keeping in view the
present position, the decision to supersede the earlier
notifications and take away the right of OCI cardholders in
whose favour such right had accrued and they have acted
in a manner to take benefit of such right should not have
been nullified without reference to the consequences.
Having undertaken the entire educational career in India or
at least the High School onwards, they cannot at this stage
turn back to the country in which they were born to secure
the professional education as they would not be in a
position to compete with the students there either, keeping
in view the study pattern and the monetary implication.
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60. To put the matter in its context for better appreciation of
the mischief caused by the impugned notification and the
manner in which it would irreversibly alter the situation, to
which aspect there is non-application of mind by
Respondent 1, it would be appropriate to refer to the
existing facts of an individual petitioner. To demonstrate
this aspect we shall take the details of the first petitioner in
WP (C) No. 891 of 2021 as an instance to demonstrate the
case in point. From the tabular statement supra, it is noted,
(a) She was born on 31-12-2003 in California, USA.
(b) Both her parents are Indian Nationals.
(c) She has come to India in the year 2006.
(d) Has lived thereafter in India for 15 years.
(e) Presently she is at Pune, Maharashtra.
(f) Pursued her entire educational career in India.
(g) Passed the 12th standard which is the qualifying
examination to appear for the Medical Entrance also in
India.
61. As on the year of birth in 2003 the Citizenship
Amendment Act, 2003 was brought in to introduce Section
7-A of the 1955 Act w.e.f. 6-12-2004. The said amendment
was based on the recommendations of a High-Level
Committee on Indian diaspora. The Government of India
decided to register the Persons of Indian Origin (PIO) of a
certain category as specified in Section 7-A of the 1955 Act
as Overseas Citizens of India. The OCI scheme was
introduced with the issue of notification of 2005 which is in
the background of the demands for dual citizenship by the
Indian diaspora and the concept of dual citizenship is not
recognised.
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62. Therefore it is evident that the object of providing the
right in the year 2005 for issue of OCI cards was in
response to the demand for dual citizenship and as such,
as an alternative to dual citizenship which was not
recognised, the OCI card benefit was extended. If in that
light, the details of the first petitioner taken note
hereinabove is analysed in that context, though the option
of getting Petitioner 1 registered as a citizen under Section
4 of the 1955 Act by seeking citizenship by descent soon
after her birth or even by registration of the citizenship as
provided under Section 5 of the 1955 Act, was available in
the instant facts to her parents, when immediately after the
birth of Petitioner 1 the provision for issue of OCI cards
was statutorily recognised and under the notification the
right to education was also provided, the need for parents
of Petitioner 1 to make a choice to acquire the citizenship
by descent or to renounce the citizenship of the foreign
country and seek registration of the citizenship of India did
not arise to be made, since as an alternative to dual
citizenship the benefit had been granted and was available
to Petitioner 1 and the entire future was planned on that
basis and that situation continued till the year 2021.
63. Further, as on the year 2021 when the impugned
notification was issued Petitioner 1 was just about 18 years
i.e. full age and even if at that stage, the petitioner was to
renounce and seek for citizenship of India as provided
under Sections 5(1)(f) and (g), the duration for such
process would disentitle her the benefit of the entire
education course from pre-school stage pursued by her in
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India and the benefit for appearing for the pre-medical test
which was available to her will be erased in one stroke.
Neither would she get any special benefit in the country
where she was born. Therefore in that circumstance when
there was an assurance from a sovereign State to persons
like that of Petitioner 1 in view of the right provided through
the notification issued under Section 7-B(1) of the 1955 Act
and all “things were done” by such Overseas Citizens of
India to take benefit of it and when it was the stage of
maturing into the benefit of competing for the seat, all “such
things done” should not have been undone and nullified
with the issue of the impugned notification by superseding
the earlier notifications so as to take away even the benefit
that was held out to them.
64. Therefore, on the face of it the impugned notification
not saving such accrued rights would indicate non-
application of mind and arbitrariness in the action. Further
in such circumstance when the stated object was to make
available more seats for the Indian citizens and it is
demonstrated that seats have remained vacant, the object
for which such notification was issued even without saving
the rights and excluding the petitioners and similarly placed
OCI cardholders with the other students is to be classified
as one without nexus to the object. As taken note earlier
during the course this order, the right which was granted to
the OCI cardholders in parity with the NRIs was to appear
for the Pre-Medical Entrance Test along with all other
similar candidates i.e. the Indian citizens. In a situation
where it has been demonstrated that Petitioner 1 being
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born in the year 2003, has been residing in India since
2006 and has received her education in India, such student
who has pursued her education by having the same
“advantages” and “disadvantages” like that of any other
students who is a citizen of India, the participation in the
Pre-Medical Entrance Test or such other Entrance
Examination would be on an even keel and there is no
greater advantage to Petitioner 1 merely because she was
born in California, USA. Therefore, the right which had
been conferred and existed had not affected Indian citizens
so as to abruptly deny all such rights. The right was only to
compete. It could have been regulated for the future, if it is
the policy of the Sovereign State. No thought having gone
into all these aspects is crystal clear from the manner in
which it has been done.
65. In the above circumstance, keeping in view, the object
with which the 1955 Act was amended so as to provide the
benefit to Overseas Citizen of India and in that context
when rights were given to the OCI cardholders through the
notifications issued from time to time, based on which the
OCI cardholders had adopted to the same and had done
things so as to position themselves for the future, the right
which had accrued in such process could not have been
taken away in the present manner, which would act as a
“retroactive” notification. Therefore, though the notification
ex facie does not specify retrospective operation, since it
retroactively destroys the rights which were available, it is
to be ensured that such of those beneficiaries of the right
should not be affected by such notification. Though the rule
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against retrospective construction is not applicable to
statutes merely because a part of the requisite for its action
is drawn from a time antecedent to its passing, in the
instant case the rights were conferred under the notification
and such rights are being affected by subsequent
notification, which is detrimental and the same should be
avoided to that extent and be allowed to operate without
such retroactivity.
66. We note that it is not retrospective inasmuch as it does
not affect the OCI cardholders who have participated in the
selection process, have secured a seat and are either
undergoing or completed the MBBS course or such other
professional course. However, it will act as retroactive
action to deny the right to persons who had such right
which is not sustainable to that extent. The goal post is
shifted when the game is about to be over. Hence we are
of the view that the retroactive operation resulting in
retrospective consequences should be set aside and such
adverse consequences is to be avoided.
67. Therefore in the factual background of the issue
involved, to sum up, it will have to be held that though the
impugned Notification dated 4-3-2021 is based on a policy
and in the exercise of the statutory power of a Sovereign
State, the provisions as contained therein shall apply
prospectively only to persons who are born in a foreign
country subsequent to 4-3-2021 i.e. the date of the
notification and who seek for a registration as OCI
cardholder from that date since at that juncture the parents
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would have a choice to either seek for citizenship by
descent or to continue as a foreigner in the background of
the subsisting policy of the Sovereign State.
68. In light of the above, it is held that Respondent 1 in
furtherance of the policy of the Sovereign State has the
power to pass appropriate notifications as contemplated
under Section 7-B(1) of the Citizenship Act, 1955, to confer
or alter the rights as provided for therein. However, when a
conferred right is withdrawn, modified or altered, the
process leading thereto should demonstrate application of
mind, nexus to the object of such withdrawal or
modification and any such decision should be free of
arbitrariness. In that background, the impugned Notification
dated 4-3-2021 though competent under Section 7-B(1) of
the 1955 Act suffers from the vice of non-application of
mind and despite being prospective, is in fact “retroactive”
taking away the rights which were conferred also as a
matter of policy of the Sovereign State.
69. Hence, the notification being sustainable prospectively,
we hereby declare that the impugned portion of the
notification which provides for supersession of the
Notifications dated 11-4-2005, 5-1-2007 and 5-1-2009 and
Clause 4(ii), its proviso and Explanation (1) thereto shall
operate prospectively in respect of OCI cardholders who
have secured the same subsequent to 4-3-2021.
70. We further hold that the petitioners in all these cases
and all other similarly placed OCI cardholders will be
entitled to the rights and privileges which had been
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conferred on them earlier to the Notification dated 4-3-2021
and could be availed by them notwithstanding the
exclusion carved out in the Notification dated 4-3-2021.
The participation of the petitioners and similarly placed OCI
cardholders in the selection process and the subsequent
action based on the interim orders [Radhika Thappeta v.
Union of India, 2021 SCC OnLine SC 3418] , [Lakshana
Mukundan v. Union of India, 2021 SCC OnLine SC 3412] ,
[Aedla Amulya Reddy v. Union of India, 2021 SCC OnLine
SC 3413] , [Suraj Jai Sriramdas v. Union of India, 2021
SCC OnLine SC 3414] , [Rajitha Savya Reddy v. Union of
India, 2021 SCC OnLine SC 3416] , [Chiraag Goya v.
Union of India, 2021 SCC OnLine SC 3419] passed herein
or elsewhere shall stand regularised.
71. Notwithstanding the fact that we have held the
impugned Notification dated 4-3-2021 to be valid with
specific prospective effect in view of the power available to
Respondent 1 under Section 7-B(1) of the 1955 Act,
keeping in perspective the wide ramification it may have in
future also on the Indian diaspora and since it is claimed to
be based on the policy decision of the Sovereign State, we
expect that the same would be examined in the higher
echelons of the Executive with reference to the rights
already created.
72. In terms of the above, all these petitions/appeals are
allowed in part to the above extent with no order as to
costs. Pending application, if any, stands disposed of.”
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7. The Writ Petitions are accordingly disposed of
reserving liberty in favour of the parties to seek revival of the
petition, if the occasion so arises.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC : List No.: 1 Sl No.: 1